international crimes tribunal-1 old high court building

ICT-BD [ICT-1] Case No.02 of 2017 Chief Prosecutor vs. Md. Abdul Jabbar Mondol & 04 ors.

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International Crimes Tribunal-1 Old High Court Building, Dhaka, Bangladesh.

ICT-BD [ICT-1] Case No.02 of 2017 Present:

Justice Md. Shahinur Islam, Chairman Justice Amir Hossain, Member

Justice Md. Abu Ahmed Jamadar, Member

The Chief Prosecutor Vs.

1. Md. Ranju Miah, 2. Md. Abdul Jabbar Mondol, [absconding] 3. Md. Jachhijar Rahman @ Khoka [absconding] , 4. Md. Abdul Wahed Mondol [absconding] and 5. Md. Montaz Ali Bepari alias Momtaz [absconding]

For the prosecution Mr. Golam Arief Tipoo, Chief Prosecutor

Mr. Zead Al Malum, Prosecutor

Mr. Hrishikesh Saha, Prosecutor

Mr. Mokhlesur Rahman Badal, Prosecutor

Mr. Altaf Uddin Ahmed, Prosecutor

Mr. Zahid Imam, Prosecutor

Ms. Sabina Yesmin Khan, Prosecutor

Ms. Rezia Sultana, Prosecutor

Mr. Tapas Kanti Baul, Prosecutor

For the defence

Mr. Mohammad Abul Hassan, Advocate: Engaged counsel for accused (1) Md. Ranju Miah AND Also the state defence counsel for 04 absconding accused (2) Md. Abdul Jabbar Mondol, (3) Md. Jachhijar Rahman @ Khoka, (4) Md. Abdul Wahed Mondol and (5) Md. Montaz Ali Bepari @ Momtaz


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Date of delivery of Judgment: 15 October, 2019

JUDGMENT [Under section 20(1) of the Act XIX of 1973]

I. Introductory Words

1. This case involves arraignments of barbaric atrocities carried

out in 1971 in the territory of Bangladesh during the war of

liberation directing the pro-liberation civilians , non-combatant

freedom-fighters and Hindu civilians constituting the offences of

‘crimes against humanity’ as enumerated in Section 3(2) of the

International Crimes (Tribunals) Act, 1973.

2. Five[05] accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar

Mondol, (3) Md. Jachhijar Rahman @ Khoka , (4) Md. Abdul

Wahed Mondol , (5) Md. Montaz Ali Bepari @ Momtaj have

been jointly tried for the atrocious criminal activities constituting

the offences of ‘confinement’ , ‘torture’, ‘other inhumane act’ ,

‘deportation’ and ‘murder’ as crimes against humanity

committed in the localities under Police Station Gaibandha Sadar

of District[now] Gaibandha in 1971, during the war of liberation.

3. Four [04] accused(1) Md. Abdul Jabbar Mondol, (2) Md.

Jachhijar Rahman @ Khoka , (3) Md. Abdul Wahed Mondol ,

(4) Md. Montaz Ali Bepari @ Momtaj have been indicted in all


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the four charges. Accused Md. Ranju Mia has been indicted in

charge nos.01 and 04.

4. Prosecution alleges that the accused persons as loyalist

activists of Pakistani occupation army, in exercise of their

affiliation in locally formed Razakar Bahini actively participated

in accomplishing the crimes with which they have been charged,

sharing common purpose.

5. Out of five accused only the accused Md. Ranju Mia has been

detained in prison. The rest four accused have been tried in

absentia after compliance of necessary legal requirement.

Pursuant to issuance of production warrant the prison authority

has produced the accused Md. Ranju Mia today before this

Tribunal [ICT-1].

6. In course of trial, Tribunal received efficient and valued

assistance from both the prosecution and the defence, to go on

with the proceeding in accordance with law by ensuring

recognised rights of defence. We appreciate their efforts.

II. Jurisdiction of the Tribunal

7. We reiterate that the Act No. XIX enacted in 1973 is meant to

prosecute crimes against humanity, genocide and system crimes

as enumerated in the Act, committed in violation of customary


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international law. Prosecuting, trying and punishing not only the

‘armed forces’ but also the perpetrator[s] who belonged to

‘auxiliary forces’, or who culpably participated in committing

the offence enumerated in the Act as an ‘individual’ or a ‘group

of individuals’ or ‘organisation’ under the Act of 1973, an ex

post facto legislation is fairly permitted.

8. In the case in hand, the accused persons have been arraigned

for committing the alleged offences, being active part of the

enterprise and , as close loyalists of Pakistani occupation army.

Prosecution also avers that all the accused got enrolled in locally

formed Razakar Bahini.

9. The offences for which the accused persons stood trial were

‘system crimes’ and not isolated crimes as those were committed

in context of the war of liberation in 1971. It is manifested from

section 3(1) of the Act of 1973 that even any person (individual),

if he is prima facie found accountable either under section 4(1)

or 4(2) of the Act of 1973 for the perpetration of offence(s), can

be brought to justice under the Act.

10. The Tribunal is governed by its guiding legislation ‘The

International Crimes (Tribunals) Act of 1973[Act No. XIX of

1973]’ and by the Rules of Procedure [ROP] 2010 formulated by


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the Tribunal [ICT-1] under the power conferred in section 22 of

the principal Statute.

11. Pursuant to the Act of 1973, the Tribunal [ICT-1] has the

authority and jurisdiction to prosecute persons responsible for the

offences enumerated in section 3(2) of the Act committed in

violations of international humanitarian law in the territory of

Bangladesh in 1971, during the war of liberation. This Tribunal

set up under the Act of 1973 is absolutely a domestic Tribunal

but aimed to try ‘internationally recognized crimes’ or ‘system

crimes’ committed in 1971 in the territory of Bangladesh.

12. Having jurisdiction under section 10(1) (j), section 20(1) and

section 20(2) of the International Crimes (Tribunals) Act,

1973[Act No. XIX of 1973] this ‘Tribunal’ known as

International Crimes Tribunal-1 [ICT-1] hereby renders and

pronounces the following judgment.

III. Brief Historical Background

13. In drawing the historical background, in brief, that ensued the

war of liberation of the Bengali nation in 1971 we reiterate that

in August, 1947, the partition of British India based on two-

nation theory, gave birth to two new states, one a secular state

named India and the other the Islamic Republic of Pakistan. The


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western zone was named West Pakistan and the eastern zone was

named East Pakistan, which is now Bangladesh.

14. In 1952 the Pakistani authorities attempted to impose ‘Urdu’

as the only State language of Pakistan ignoring Bangla, the

language of the majority population of Pakistan. The people of

the then East Pakistan started movement to get Bangla

recognized as a state language and eventually turned to the

movement for greater autonomy and self-determination and

finally independence.

15. The history goes on to portray that in the general election of

1970, the Awami League under the leadership of Bangabandhu

Sheikh Mujibur Rahman, the father of the nation became the

majority party of Pakistan. But deliberately defying the

democratic norms Pakistan Government did not care to respect

this overwhelming majority.

16. As a result, movement started in the territory of this part of

Pakistan and Bangabandhu Sheikh Mujibur Rahman, the father

of the nation in his historic speech of 7th March, 1971, called on

the Bangalee nation to struggle for independence. It is to be

noted with immense pride that the historic March 7 speech of

Bangabandhu Sheikh Mujibur Rahman, the father of nation has


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been recognised by the UNESCO as a world documentary

heritage.

17. The 7 March blazing speech of Bangabandhu calling on the

freedom-loving Bangalees indispensably mobilized and inspired

the whole nation, excepting a few pro-Pakistan people to get

prepared for the war of liberation. In the early hour of 26th

March, following the onslaught of “Operation Search Light” by

the Pakistani Military on 25th March, Bangabandhu Sheikh

Mujibur Rahman declared Bangladesh independent immediately

before he was arrested by the Pakistani authorities.

18. Disparity and deprivation eventually pushed the Bengali

nation to start struggle. In 1971 after the operation searchlight on

25 March night and after declaration of independence by

Bangabandhu Sheikh Mujibur Rahman the Pakistani occupation

army and their local collaborators belonging to pro-Pakistan

political parties and auxiliary forces started barbarous mayhem

directing Bengali population throughout the territory of

Bangladesh which continued for long nine months.

19. In the War of Liberation that ensued in 1971, all people of

the then East Pakistan unreservedly supported and participated in

the call to make their motherland Bangladesh free but a small


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number of Bangalees, Biharis, other pro-Pakistanis, as well as

members of a number of different religion-based political parties,

particularly Jamat E Islami (JEI) and its student wing Islami

Chatra Sangha (ICS), Muslim League, Convention Muslim

League joined and/or collaborated with the Pakistani occupation

army to aggressively resist the conception of independent

Bangladesh and most of them committed and facilitated as well

the commission of systematic and widespread appalling

atrocities directing civilian population in the territory of

Bangladesh, in 1971, to further their policy and plan of

annihilating the dream of self determination of Bengali nation.

This is now a settled history of which this Tribunal takes judicial

notice as permitted by the Act of 1973 and the ROP.

20. The Pakistani occupation army’s terrible brutality directing

civilian population of Bangladesh was planned and in

furtherance of policy-- the policy to wipe out the pro-liberation

Bengali civilians. The Appellate Division, in the case of Abdul

Quader Molla has observed that –

“The way the Pakistani Army had acted,

surpasses anything that could pass for

legitimate use of force. It had resorted to

wanton murder of civilians, including women

and children in a deliberate plan to achieve

submission by stark terror. [Appellate


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Division, Abdul Quader Molla Judgment,

17 September 2013 page 39]

21. The Bengali nation on call of Bangabandhu Sheikh Mujibur

Rahman, the Father of the Nation started war of liberation to

achieve indolence and independent mother land. Three millions

laid their lives, hundreds of thousands of sisters and mothers

sacrificed their supreme honour for the cause of independence

and one crore civilians had to deport to India quitting own

homes. Existing terrorizing and coercive situation forced them to

deport.

22. The alleged atrocities for which the accused persons stood

trial were not isolated from the policy and plan of the Pakistani

occupation army who started its ‘mayhem’ since 25 March 1971

intending to wipe out the pro-liberation Bengali civilians, to

resist their aspiration of self determination.

23. The nation fought for the cause of independence and self

determination and finally achieved independence on 16

December 1971. History testifies that enormously grave and

recurrent horrific atrocities directing the Bengali civilians in the

territory of Bangladesh starting since 25 March 1971 did not

thrive to foil the highest sacrifice of the nation. The nation


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always pays tribute and homage to the blood of millions of

patriotic martyrs and innocent defenceless people who too

sustained immense trauma and pains.

24. In 1971, the Pakistani army had no friends in Bangladesh—

except a few traitors who took stance against the war of

liberation and they belonged to the ideology of pro-Pakistan

political parties, e.g. Muslim League, the Convention Muslim

League, the Jamaat-e-Islami [JEI] and the Nizam-i-Islami.

25. It is now settled history that Jamat E Islami [JEI] with intent

to provide support and assistance to the Pakistani occupation

army by forming peace committee, armed Razakar and Al-Badar

force obtained government’s recognition for those para militia

forces. JEI started acting antagonistically since the beginning of

the war of liberation and it ended in killing of intellectuals. It is

found from a report published in The Daily Sangram 17 April

1971 that a delegation team comprising of members of Central

Peace Committee including Professor Ghulam Azam [also the

then Amir of Jamat E Islami] in a meeting with the Governor of

East Pakistan Lt. General Tikka Khan expressed solidarity and

their adherence to the armed forces.


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26. Prosecution avers that accused persons did not keep them

distanced from the strategy of JEI to further the policy and plan

of the Pakistani occupation army in carrying out barbaric

atrocities against the non combatant pro-liberation civilians that

resulted in commission of offences enumerated in the Act of

1973. Victims of their target of criminal acts in grave breach of

Geneva Convention were the civilians in occupied territory of

Bangladesh. It is now a settled history.

27. The ‘aggression’ that resulted in untold violation of civilians’

recognized rights and indiscriminate killings in the territory of

Bangladesh in 1971 started with launching the ‘operation

searchlight’ was in grave breaches of Geneva Convention 1949.

After the ‘operation search light’ ten millions of Bengali

civilians were compelled to deport under the horrors of dreadful

aggression and brutality spread over the territory of Bangladesh.

28. It is true that the perpetrators of horrific atrocious activities

accomplished in 1971 in the territory of Bangladesh are being

prosecuted long more than four decades later. But delay in

prosecuting the crimes enumerated in the Act of 1973 cannot be

a clog at all. There has been no statutory limitation of

prosecuting and trying the ‘system crimes’ or ‘group crimes’

which happened in context of war.


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29. Finally, the untold atrocious resistance on part of thousands

of local collaborators could not impede the nation’s fearless

voyage to freedom. In the present-day world history, conceivably

no nation paid as extremely as the Bangalee nation did for its

self-determination and independence. The nation shall remain

ever indebted to the best sons and daughters of the soil who paid

supreme sacrifices for an indelible motherland – Bangladesh.

IV. Brief account of the Accused Persons

30. Before we begin adjudication of indictments brought and

accountability of the accused persons for the crimes alleged we

consider it relevant to focus on the brief account of the accused

person which is as below:

(i) Md. Abdul Jabbar Mondol

Md. Abdul Jabbar Mondol (86), son of late Abdul Gofur Mondol

and late Fuljan Nesa Begum, village-Nandina, Police Station-

Gaibandha Sadar, District-Gaibandha was born on 05.06.1929

(as per NID). He studied up to Class VIII in Khordo Kamorpur

High School under Police Station- Gaibandha Sadar of District

[now]-Gaibandha. He was a village Doctor by profession. As an

active member of Jamaat-E-Islami during the war of Liberation

in 1971, accused Md. Abdul Jabbar Mondol participated in anti-

liberation activities and in order to help Pakistani Occupation


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Army he was engaged in forming local Peace Committee and

armed Razakar Bahini. He was the Union Commander of

Razakar Bahini and led them in aiding Pakistani Occupation

Army in Saha Para Union and Gaibandha Sadar area. He was

involved in committing the offences of genocide, murder, rape,

looting, arson and other inhumane act as Crimes against

Humanity in collaboration with Pakistani Occupation Army and

Razakar Bahini, prosecution alleges.

(ii) Md. Jachhijar Rahman alias Khoka

Md. Jachhijar Rahman alias Khoka (64), son of Abdul Jabbar

Mondol and Mst. Amena Begum, village-Nandina, Police

Station-Gaibandha Sadar, District-Gaibandha, at present- House

No.464/5, North Ibrahimpur (4th floor, Bou Bazarer Dhal), Police

Station-Kafrul, DMP, Dhaka. His date of birth is 22.04.1954

(According to Bangladesh Police Identity Card). He passed

S.S.C in 1968 from Khordo Komorpur High School. In 1971,

during the liberation war of Bangladesh, he was an active

member of local Jamaat-E-Islami. In 1971 he joined the Razakar

Bahini and led it in aiding Pakistani Occupation Army in

carrying out mass atrocities around his locality, prosecution

avers.

(iii)Md. Abdul Wahed Mondol

Md. Abdul Wahed Mondol (62),son of Md. Abdul Jabbar



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Station- Gaibandha Sadar, District5 Gaibandha. He passed S.S.C.

He was an active member of local Jamaat-E-Islami in 1971.

(iv) Md. Montaz Ali Bepari alias Momtaj

Md. Montaz Ali Bepari alias Momtaj (68), son of late Shomesh

Uddin Bepari and late Khatijan Bewa, village-Nandina, Police

Station- Gaibandha Sadar, District [now]-Gaibandha. His date of

birth is 05.03.1947. He was an active supporter of Jamaat-E-

Islami in 1971.

(v)Md. Ranju Miah

Md. Ranju Miah (59), son of late Abbas Ali and late Amena

Begum, village- Chak Goyashpur, Police Station-Gaibandha

Sadar, District-Gaibandha. His date of birth is 21.04.1957. He is

illiterate and can just sign his name only. In 1971 he was a

supporter of Jamaat-E-Islami and was a member of Razakar

Bahini.

V. Procedural History

Initiation of Investigation

31. The Investigation Agency of the Tribunal constituted under

the Act of 1973 started the task of investigation pursuant to

complaint register’s serial no. 58 dated 12.10.2015, in respect of

commission of offences enumerated in section 3(2) of the Act of


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1973 allegedly perpetrated in 1971 during the war of liberation,

in collaboration with the Pakistani occupation army around the

localities under police station-Gaibandha Sadar of District

[now]-Gaibandha.

Pre-trial detention

32. During investigation, on prayer of the IO through the

prosecution the Tribunal on 29.05.2016 ordered issuance of

warrant of arrest [WA] against the six suspected accused

persons. Suspected accused Md. Ranju Miah was found arrested

in connection with Palashbari-police station case no. 20 dated

17.02.2016 and thus in execution of WA issued he was produced

before this Tribunal on 27.07.2016 when he was sent to prison,

showing arrested in connection with this case.. The four other

suspected accused could not be apprehended, in execution of

warrant.

Interrogation at safe home

33. Tribunal, on application of the Investigation Officer moved

by the prosecution permitted to interrogate the accused Md.

Ranju Miah and he was interrogated accordingly on 31.10.2016

at the ‘safe home’ of the Investigation Agency.


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Submitting investigation report

34. On wrapping up investigation, the Investigation Officer [IO]

Md. Helal Uddin submitted report together with documents and

materials collected and statement of witnesses on 21.12.2016

before the Chief Prosecutor under Rule 11 of the ROP, wrapping

up of investigation.

35. Afterward, on 07.03.2017 the IO by submitting a report to

the prosecution informed that one suspected accused Md. Asgar

Hossain Khan died on 03.12.2016 i.e at pre-trial stage.

Submitting formal charge

36. The Chief Prosecutor, on the basis of the report and

documents submitted therewith by the Investigation Agency and

also taking the information about death of one suspected accused

at pre-trial stage into account, submitted the ‘Formal Charge’ on

09.03.2017 under section 9(1) of the Act of 1973 before this

Tribunal alleging that accused persons were engaged in

committing the offences as enumerated in section 3(2) of the Act

of 1973 during the period of War of Liberation in 1971 around

the localities under Police Station- Gaibandha Sadar of

District[now]-Gaibandha.

Taking cognizance of offences

37. The Tribunal, under Rule 29(1) of the Rules of Procedure,

took cognizance of offences as mentioned in section 3(2)


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(a)(g)(h) of the Act of 1973, by application its judicial mind to

the Formal Charge, materials and documents submitted

therewith.

Legal requirements for holding absentia trial against four accused

38. The law enforcement agency could not secure arrest of

four[04] accused Md. Abdul Jabbar Mondol, Md. Jachhijar

Rahman @ Khoka, Md. Abdul Wahed Mondol and Md. Montaz

Ali Bepari @ Momtaz as they remained absconded and there was

no immediate prospect of causing their arrest as the report in

execution of warrant of arrest demonstrated it .

39. After having report in respect of execution of warrant of

arrest issued against those four accused the Tribunal, for the

purpose of holding proceeding in their absentia, ordered

publication of notification in two national daily news papers as

required by law. But those accused did not turn up despite such

notification published in two national daily news papers and as

such treating them absconding the Tribunal ordered for hearing

the charge framing matter by appointing Mr. Mohammad Abul

Hassan as the state defence counsel, at the cost of Government,

to defend the absconding four accused persons.


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Hearing on charge framing matter

40. Then hearing on charge framing matter took place on

08.03.2018 when both sides placed their respective submission,

drawing attention to the formal charge and documents submitted

therewith.

Examination of witnesses and summing up

41. Prosecution intending to substantiate the arraignments

brought in four charges adduced 16 witnesses including the

investigation officer [IO]. Of them 15 have been examined and

one has been tendered. Learned state defence counsel defending

all the accused duly cross-examined the witnesses.

42. After conclusion of summing up advanced by both sides on

29.05.2019 and 21.07.2019 the case was kept in CAV i.e. for

delivery and pronouncement of judgment.

VI. Applicable laws

43. The tribunal formed under the Act of 1973 is a domestic

judicial forum to prosecute, try and punish the offences of crimes

against humanity, genocide. It is to be reiterated that the

provisions as contemplated in the International Crimes

(Tribunals) Act 1973 and the Rules of Procedure 2010

formulated by the Tribunal [ICT-1] under the powers given in


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section 22 of the Act are applicable to the proceedings before the

Tribunal.

44. Section 23 of the Act of 1973 prohibits the applicability of

the Code of Criminal Procedure, 1898 and the Evidence Act

1872. Tribunal is authorized to take judicial notice of fact of

common knowledge which is not needed to be proved by

adducing evidence [Section 19(4) of the Act].

45. Any evidence if it is considered to have probative value

[Section 19(1) of the Act] may be admitted by the Tribunal. The

Tribunal shall have discretion to consider even the hearsay

evidence by weighing its probative value [Rule 56(2)]. The

defence shall have liberty to cross-examine prosecution witness

on his credibility and to take contradiction of the evidence given

by him [Rule 53(ii)]. Defence shall have right to examine

witnesses [Section 10(1) (f) of the Act of 1973].

46. In dealing with the trial relating to offence of crimes against

humanity, committed in violation of customary international law,

the Tribunal however is not precluded from seeking guidance

from international reference and relevant jurisprudence, if

needed to resolve legal issues or crucial matters substantially


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related to adjudication of event constituting the offences alleged

and culpability of the accused persons therewith.

VII. Summing up [Argument]

Summing up by the Prosecution

47. Mr. Mokhlesur Rahman Badal the learned prosecutor

drawing attention to the documentary and oral testimony

tendered placed summing up when it has been first submitted

that all the accused persons were infamous Razakars; that they

by virtue of their such affiliation collaborated with the Pakistani

occupation army in committing atrocious activities constituting

the offences of crimes against humanity . All the events

arraigned were barbaric in nature. All the five accused have been

indicted in charge nos. 01 and 04 and four accused, excepting

accused Ranju Mia have been indicted in charge nos.02 and 03.

48. The learned prosecutor submits that the evidence relied upon

proves the arraignments brought against the accused persons.

Most of witnesses are direct witnesses and sufferers who

sustained trauma and pain as they experienced the commission of

horrendous activities forming part of the attacks. Defence could

not controvert what the witnesses recounted in relation to the


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events happened. Rather, some crucial matters shall seem to have

been affirmed in cross-examination.

49. In arguing on indictment the learned prosecutor Mr.

Mokhlesur Rahman Badal drew attention to the materially

incriminating part of the testimony of witnesses examined

intending to establish the nexus, mode of participation of the

accused persons with the commission of the crimes for which

they have been charged with. However, we consider it

appropriate to address the argument advanced on each charge

independently when we will go on to adjudicate the same.

Summing up by the defence

50. Mr. Mohammad Abul Hassan the learned engaged counsel

for accused Md. Ranju Mia and state defence counsel for the four

absconding accused submits that none of accused belonged to

Razakar Bahini; the document relied upon does not show

membership of four accused in Razakar Bahini; that accused Md.

Ranju Mia was a tender aged in 1971; that the prosecution

witnesses did not have reason of knowing the accused persons

and their testimony suffers from inconsistency and not credible.

51. The learned defence counsel also argued on each charge

drawing attention to inconsistencies between evidence tendered


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by the prosecution. It has been submitted that the prosecution

failed to prove concern and participation of accused persons with

the commission of the offences alleged; that the witnesses

examined by the prosecution are not reliable and their testimony

does not carry value and the accused persons have been falsely

implicated in this case, out of rivalry. However, the submission

agitated in respect of each charge may be well focused while we

will go on for adjudicating the charges independently.

VIII. Razakar Bahini: It’s Objective in 1971 and whether the accused persons belonged to the locally formed Razakar Bahini

52. Mr. Mokhlesur Rahman Badal the learned prosecutor

started placing summing up by submitting that the accused

persons started collaborating with the Pakistani occupation army

since they got stationed in Gaibandha. Afterwards, Razakar

Bahini was formed locally of accused persons, Asgar Ali Khan

[now dead]. Accused persons were of those Bengali people who

had acted taking stance against the war of liberation. The list

dated 10.11.2010 Exhibit-1 [prosecution documents volume

page nos. 15-16] obtained from Gaibandha Sadar Upazila

Command, Bangladesh Muktijodhdha Sangsad proves that

accused Md. Ranju Mia was a Razakar and four other accused

persons were collaborators.


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53. The learned prosecutor further submits that it was a

challenging task indeed to collect documented evidence in

support of the related fact. Drawing attention to the list Exhibit-

1 it has been submitted that it does not state the name of four

accused as Razakars, true. But oral testimony of witnesses who

knew those accused beforehand as they were from their locality

in testifying the events arraigned have consistently termed them

as Razakars which could not be refuted in any manner. Thus,

mere inaccurate or incomplete information contained in the list

does not diminish the fact of affiliation of those four accused in

locally formed Razakar Bahini, particularly when the ocular

evidence tendered shall demonstrate that all the accused persons,

in exercise of their affiliation in Razakar Bahini were culpably

engaged in committing systematic attacks directing pro-

liberation civilians that constituted the offences of crimes against

humanity as arraigned in the charges framed.

54. Mr. Mohammad Abul Hassan the learned engaged counsel

and also the state defence counsel submits that none of accused

persons was member of locally formed Razakar Bahini; that the

document Exhibit-1 relied upon by the prosecution on this matter

itself states that four accused, excepting accused Md. Ranju Mia

were ‘collaborators’ and not ‘Razakars’; that accused Md. Ranju

Mia was a tender aged boy in 1971 ; that NID Card of accused


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Md. Ranju Mia relied upon by the prosecution demonstrates it

and thus information contained in the alleged list in respect of his

membership in Razakar Bahini is not authoritative and true and

oral testimony is not sufficient to establish this pertinent fact.

The accused persons have been falsely implicated in this case

terming them Razakars, without any authenticated basis, the

learned defence counsel added.

55. Tribunal reiterates that the Act of 1973 permits to prosecute

even an ‘individual’ for the commission of any of offences

enumerated in section 3 of the Act. However, the accused

persons are alleged to have had affiliation in the locally formed

Razakar Bahini. Long four and half decades after the atrocities

committed in 1971 it was indeed a challenge to collect evidence

to substantiate this crucial issue. However, prosecution chiefly

relied upon oral evidence intending to make this matter proved.

It transpires that the prosecution also relies upon a document, a

list obtained from the Upazila Command, Bangladesh

Muktijodhdha Sangsad, under signature of its commander.

56. In the above list Exhibit-1 only one accused Md. Ranju Mia

has been shown as Razakar and four other accused persons have

been shown therein as ‘collaborators’. It is not understood why

compassion has been extended to accused Abdul Jabbar Mondol


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and Jachhijar Rahman when ocular testimony of residents of

crime localities goes to show their active affiliation in Razakar

Bahini.

57. In the case in hand, all the charges framed arraign that the

accused persons enthusiastically participated in carrying out

alleged recurrent atrocious activities around the localities

targeting the pro-liberation civilians, non-combatant freedom-

fighters and Hindu civilians.

58. Presumably, due to lapse of long passage of time and for the

reason of post conflict situation it could not be possible to

collect more documented evidence , in course of investigation,

particularly in support of affiliation of accused persons in

Razakar Bahini. But merely for this reason the truthfulness of

ocular testimony presented in this regard shall not be diminished.

59. In view of above, mere absence of mentioning the four

accused as Razakars, instead a collaborator does not lessen the

value of information made in the list Exhibit-1 in its entirety.

Tribunal notes that in a case involving offences as enumerated in

section 3(2) of the Act of 1973 we are to resolve whether the

person indicted committed the offences in question and whether


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he committed such offence in exercise of his affiliation in an

auxiliary force i.e. Razakar Bahini or in capacity as an

‘individual’. It is now well settled that –“[……] mere failure to

prove membership in Razakar Bahini an accused cannot be

exonerated if he is found to have had participation and

complicity with the commission of the offences alleged even in

the capacity of an ‘individual’. [Md. Amir Ahmed and others ,

ICT-BD [ICT-1] Case No. 05 of 2015, Judgment , 13 March,

2018, para, 49].”

60. Besides, we reiterate that section 3(1) of the Act of 1973

permits also to prosecute, try and punish an individual or group

of individuals, in addition to member or members of an auxiliary

force for the offences as crimes against humanity, genocide.

Thus, from this point of view too, we are not agreed with the

submission advanced on this document, on part of defence.

However, now let us see what the witnesses testified on this

issue.

61. P.W.02, a relative of victims of the event arraigned in charge

no. 02 in reply to defence question put in cross-examination that

‘the accused Razakars were with the Pakistani occupation army

[at the time of the attack]’. Presence of the accused persons at the

crime scene relates to the commission of alleged crimes which


27

deserves to be resolved on evaluation of evidence. But now, it

impels that affiliation of accused persons in Razakar Bahini has

been affirmed.

62. P.W.04, the wife of one victim of the event of killing as

arraigned in charge no.02 recounted the event describing the

accused persons as Razakars. It has not been denied even in

cross-examination.

63. Another witness P.W.13 also stated that Gaibandha Sadar

Thana Razakar Bahini was formed of Ranju Mia, Abdul Jabbar

Mondol, Wahed Mondol, Montaz Ali Bepari, Asgar Khan,

Jachhijar Rahman and 30/40 others. He knew the Razakars he

named beforehand as they were from their locality. Defence

could not bring anything to diminish it in any manner. This piece

of unimpeached version also provides assurance as to affiliation

of accused persons in locally formed Razakar Bahini.

64. P.W.15 testified that in 1971 Razakar Bahini was formed in

Gaibandha for collaborating with the Pakistani occupation army;

that Razakar Asgar Ali Khan [now dead], Razakar Abdul Jabbar

Mondol whom he knew and their cohorts used to keep the Sakoa

Bridge guarded. Defence declined to cross-examine this P.W.15

and as such this fact remained undisputed. It thus leads to


28

conclude that accused Jabbar Mondol was a potential Razakar.

Be that as it may the list Exhibit-1 does not speak of complete

and accurate information.

65. In 1971, during the war of liberation ’Razakars’ and

‘collaborators’ became synonymous. Thus, showing four accused

as ‘collaborators’ in the list Exhibit-1 does not diminish the fact

that also two accused Abdul Jabbar Mondol and Jachhijar

Rahman were associated in locally formed Razakar Bahini.

Unimpeached version of P.W.15 goes to show indisputably that

accused Jabbar Mondol was a Razakar.

66. Two accused Wahed Mondol and Jachhijar Mondol are the

sons of accused Md. Abdul Jabbar Mondol. It is admitted. These

three accused have been absconding. Ocular evidence reasonably

shows that they too got engaged in collaborating with the

Pakistani occupation army, in exercise of their affiliation in

Razakar Bahini. Presumably, being imbued by the stance their

father took against the war of liberation accused Jachhijar

Mondol also got affiliated in Razakar Bahini, intending to

collaborate with the Pakistani occupation army in a syndicated

way.


29

67. It transpires from ocular testimony of witnesses the relatives

of victims that the accused persons were the residents of their

locality, nearer to their houses. Thus, naturally the witnesses had

reason of being acquainted to the identity of the accused persons

who were allegedly engaged in carrying out extreme wrong

doings and notoriety, and thus all collaborators were known to

them as Razakars.

68. In view of reasoned deliberation made above, based on

evidence it stands proved beyond reasonable doubt that all the

five accused collaborated with the Pakistani occupation army,

maintaining close nexus to it. And they did it to further the

policy and plan of the Pakistani occupation army. It emerges that

the sufferers of atrocities of which the accused persons have been

indicted have unequivocally testified that in 1971 the accused

persons whom they knew beforehand were Razakars and such

testimony could not be impeached by the defence.

69. In the case in hand, it emerges from evidence of P.W.15 that

almost instantly after the Pakistani occupation army got stationed

in Gaibandha Razakar Bahini was formed. What was the object

of creating the Razakar force in 1971? Infamous Razakar Bahini

was an ‘auxiliary force’ as defined in section 2 of the Act of


30

1973 as it had acted maintaining ‘static relation’ with the armed

force for ‘operational’ purpose.

70. It is now settled that it was composed of mostly pro-Pakistani

Bengalis. Razakars were actively associated with many of the

atrocities committed by the Pakistani occupation Army during

the 9-month war of liberation in 1971. From totality of evidence

tendered as already discussed it stands proved that the accused

persons despite being Bengali took stance with the Pakistani

occupation preserving solidarity of Pakistan.

71. Razakar force was formed with the aim of resisting the

‘miscreants’ and to wipe out the ‘anti state elements’ with the aid

of army [Source: ‘The Daily Dainik Pakistan’, 16 May 1971].

Peace Committees were also formed with the identical plan. The

plan was to combat and annihilate the pro-liberation civilians

who were perceived to be the ‘miscreants’. History says it.

72. Razakar Bahini, an auxiliary force was thus formed to

collaborate with the Pakistani occupation army to further the

policy of annihilating the Bengali nation—it is now well settled.

Peace committee, Pro-Pakistan political parties including Jamat

E Islami, Muslim League etc. had played key role in forming this

auxiliary force and they symbolized the pro-liberation Bengali


31

people as their ‘enemies’ and ‘miscreants’. Two accused are

alleged to have had affiliation in Jamat-E-Islami. It could not be

controverted.

73. It appears that in narrating the brief account of accused

persons in the formal charge it has not been claimed that two

accused Md. Abdul Wahed Mondol and Md. Montaz Ali Bepari

alias Momtaz got enrolled in locally formed Razakar Bahini in

1971. It has been asserted therein that they were actively

affiliated in politics of Jamat-E-Islami a potential pro-Pakistan

political party. The list Exhibit-1 also demonstrates that they and

two other accused Md. Abdul Jabbar Mondol and Md. Jachhijar

Rahman @ Khoka were ‘collaborators’.

74. In view of above we are to chiefly see whether the accused

Md. Abdul Wahed Mondol and Md. Montaz Ali Bepari alias

Momtaz collaborated with the Pakistani occupation army in

accomplishing the alleged atrocities. Merely for the reason that

these two accused did not belong to Razakar Bahini cannot be

readily exonerated of the liability.

75. Tribunal notes that prosecution even against an individual for

the offences enumerated in the Act of 1973 is quite permissible.

We are to see whether these two accused had close nexus with


32

the Pakistani occupation army stationed in Gaibandha and the

Razakar Bahini formed there, in exercise of their affiliation in

Jamat-E Islami.

76. In respect of two other accused i.e. Md. Abdul Jabbar

Mondol and Md. Jachhijar Rahman @ Khoka it has been found

proved from cumulative evaluation of ocular evidence that they

were affiliated in Razakar Bahini, despite the fact that the list

Exhibit-1 does not state them as Razakars.

77. P.W.13 stated that Gaibandha Sadar Thana Razakar Bahini

was formed of all the accused Ranju Mia, Abdul Jabbar Mondol,

Wahed Mondol, Montaz Ali Bepari, Jachhijar Rahman, Asgar

Khan[now dead] and 30/40 others. It may be inferred that for the

reason of notoriety and nexus with the Pakistani occupation army

all the accused were perceived to be Razakars which became

synonymous to collaborators and that is why the P.W.013

included also the accused Wahed Mondol, Montaz Ali Bepari as

members of Razakar Bahini.

78. However, it reveals that all the accused persons allegedly

collaborated with the Pakistani occupation army in carrying out

alleged atrocities, some of them in capacity as individuals and


33

some in exercise of their affiliation in locally formed Razakar

Bahini.

79. In conclusion, we may therefore arrive at a conclusion that

three accused Md. Ranju Miah, Md. Abdul Jabbar Mondol and

Md. Jachhijar Rahman @ Khoka had allegedly acted in exercise

of their explicit and culpable affiliation in Razakar Bahini, an

‘auxiliary force’ under control of Pakistani occupation army for

their operational and other purposes. And two other accused Md.

Abdul Wahed Mondol and Md. Montaz Ali Bepari alias

Momtaz, the active followers of Jamat-E-Islami culpably

collaborated with the Pakistani occupation army, to further

policy and plan, under control of Pakistani army for their

operational and other purposes.

IX. The way of adjudicating the charges and the settled jurisprudence

80. In the case in hand, evidence relied upon by the prosecution

in support of respective arraignments is chiefly testimonial.

Some of prosecution witnesses allegedly experienced criminal

acts conducted in conjunction with the dreadful event of alleged

attacks. Tribunal in exploring the truth duly weighed value,

relevance and credibility of such testimonies in a most


34

dispassionate manner, keeping in mind that the accused persons

shall be presumed innocent till they are found guilty.

81. Totality of horrific profile of the offences arraigned naturally

left little room for the people or survived civilians to witness the

entire event or all aspects of attacks. Due to the nature of crimes,

context and post-conflict instability, these crimes could not be

well documented by post-conflict authorities. Additionally, for

the reason of lapse of long passage of time, it may not always be

reasonable to expect the witnesses to recount every detail with

precision. All these reality need to be kept in mind in assessing

the evidence tendered.

82. It is to be noted that the Tribunal it is not bound to apply the

technical rules of evidence. Rather, the Tribunal is to determine

the probative value of all relevant evidence admitted. Hearsay

evidence, in a trial under the Act of 1973, is not inadmissible per

se, but that such evidence should be considered with caution and

if it carries reasonable probative value.

83. It is now well settled that corroboration of evidence is not

necessarily required and the Tribunal may rely even on a single

witness’ testimony as proof of a material fact if the same

demonstrates credence.


35

84. Tribunal must eye on the settled principle that onus squarely

lies upon the prosecution to establish accused persons’

participation and complicity forming part of attacks resulted in

commission of the offences in question as enumerated in section

3(2) of the Act of 1973 for which they have been arraigned.

85. Finally, we unanimously pen the view that it would be

appropriate and jurisprudentially logical if, in the process of

appraisal of evidence, we separate the grains of acceptable truth

from the chaff of exaggerations and improbabilities which cannot

be safely or prudently accepted and acted upon. To go on with

this task the Tribunal shall not be precluded from borrowing

guidance from the jurisprudence evolved for the purpose of

arriving at decision.

86. Keeping the above inevitable settled perspectives and

propositions in mind now let us move to the task of adjudication

of charges framed, on rational appraisal of evidence presented by

the prosecution.

X. Adjudication of Charges

Adjudication of Charge No. 01: [05 accused indicted] [Offences of ‘Abduction’; ‘Confinement’; ‘Torture’; ‘Plunder’, ‘Murder’, ‘Deportation’ and ‘other Inhumane Acts’]


36

87. Charge: That in the first fortnight of June, 1971 on any day

at about 10.00 A.M. a group formed of 15/20 Pakistani

occupation army men and other Razakars being accompanied by

accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar Mondol

(absconded), (3) Md. Jachhijar Rahman alias Khoka

(absconded), (4) Md. Abdul Wahed Mondol (absconded), (5)

Md. Montaz Ali Bepari alias Momtaj (absconded) and Razakar

Md. Asgar Ali Khan (now dead), coming from Helal Park army

camp launched attack directing the local Hindu community at

village-Bishnopur under police station-Gaibandha Sadar of

District-[now] Gaibandha. In conjunction with the attack the

accused persons and their accomplices captured Ambika Charan

Sarkar from his house and tortured him inhumanly, looted

valuables and left that house guessing him dead.

Thereafter, the accused persons and their accomplices, in

conjunction with the attack forcibly captured Dijesh Chandra

Sarkar, Abdul Mazid Prodhan from their house, looted the

valuables, unlawfully detained Ful Kumari Rani and her sister-

in-law Sadhana Rani Sarkar and forcibly converted them into

Muslim.

In conjunction with the attack, Pakistani occupation army men

exonerated Abdul Mazid Prodhan as he was a Muslim and


37

forcibly took Dijesh Chandra Sarkar away to the army camp in

Gaibandha and afterward, he was killed and his dead body was

made concealed. Two months later, victim Ambika Charan

Sarkar succumbed to injuries inflicted by the accused persons

and their accomplices.

By carrying out above atrocious activities directing civilians

belonging to Hindu religious group , 300/400 Hindu civilians of

different villages under Sahapara Union including 45 Hindu

civilians as named in the formal charge were forced to deport to

India.

Therefore, accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar

Mondol (absconded), (3) Md. Jachhijar Rahman alias Khoka


Md. Montaz Ali Bepari alias Momtaj (absconded) have been

charged for participating, abetting, facilitating, contributing and

also for complicity in the commission of offences of

‘abduction’; ‘confinement’; ‘torture’; 'deportation', 'other

inhumane act' and ‘murder’ as crimes against humanity as

enumerated in section 3(2)(a)(g)(h) read with section 4(1) of the

International Crimes (Tribunals) Act, 1973 which are punishable

under section 20(2) of the Act.


38

Evidence of Witnesses Examined

88. Prosecution relies upon seven [07] witnesses of whom

P.W.11, P.W.12, P.W.13 and P.W.15 are direct witnesses who

had natural occasion of witnessing the acts crucially related to

the event of attack alleged. Before we weigh and asses the

credibility of the narrative they have made let us see what they

have recounted in Tribunal.

89. P.W. 11 Sri Prodip Kumar Sarkar [63] is a resident of

village- Bishnopur under police station- Gaibandha Sadar of

District Gaibandha. In 1971 he was 14 years old. He is a direct

witness to facts materially related to the event of attack

arraigned.

90. P.W.11 stated that during first part of June and end of Bangla

month Jaistha in 1971 at around 10:00 A.M he had been playing

in the fields, east to their house when he saw 15/20 Pakistani

occupation army men and Razakars approaching towards their

home. With this he rushed to home and alarmed everybody to go

into hiding. Being panic-stricken he went into hiding inside a

nearby jungle adjacent to their home wherefrom he saw the

Pakistani occupation army being accompanied by Razakar Asgar

Ali [now dead], Razakar Abdul Jabbar Mondol, Razakar

Jachhijar Rahman, Razakar Abdul Wahed Mondol, Montaz Ali


39

Bepari, Ranju Mia of their neighbouring village and other

Razakars entering inside their home and they started plundering

and looting. They dragged out his [P.W.11] cousin brother

Dijesh Chandra Sarkar and his friend Abdul Majid, detaining

unlawfully and tied them up with a treed and started causing

torture inhumanely. They[ the attackers] then set one detainee

Abdul Majid at liberty as he was a Muslim and took away

his[P.W.11] detained brother Dijesh Chandra Sarkar by vehicle

towards Gaibandha army camp.

91. P.W.11 also stated that next [after the gang had left the site]

he came out of the hiding place and he came to know from his

mother and aunt Sadhana Rani [now dead] that the Pakistani

occupation army men and their collaborators brought them out

from home, made them terrorized and told them that they would

be taken to army camp if they were not converted to Islam. With

this being very terrified of their life, they acknowledged being

Muslim. Then they [attackers] made bangles that are used by

married Hindu women broken and wiped out red vermillion they

used on head.

92. Finally, P.W. 11 stated that on the following day he came to

know that his cousin brother Dijesh Chandra Sarkar was tortured

inhumanely and afterward, he was gunned down to death and his


40

dead body was made hidden. Subsequent to the event he narrated

that the Hindu residents of their locality and their family inmates

being terrified by such atrocious activities were forced to deport

to India and returned back after the independence achieved.

93. In cross-examination, P.W.11 in reply to defence question

stated that their home was about 2-2.5 kilometers away from the

village-Chak Goyashpur; that the nearby jungle from their home

was around 50 yards far.

94. In cross-examination, defence suggested P.W.11 that his

brother Dijesh Chandra Sarkar died in battle with Pakistani

occupation army; that the accused persons he named were not

Razakars; that they were not involved with the event he narrated

and that what he testified was untrue. P.W.11 denied all these

suggestions blatantly.

95. P.W. 12 Sri Kanti Bhusan Sarkar [74/75] is a resident of


District Gaibandha. In 1971 he was 27 years old and at that time

he was a service holder in health department. He claims to have

witnessed facts crucially related to the event of attack arraigned.

96. P.W.12 stated that during the last part of Bengali month

Jaistha he had been at their home when he saw a group formed of


41

15/20 Pakistani occupation army and Razakars heading towards

their home and when they arrived in front of their house he saw

Razakars Abdul Jabbar Mondol, Asgar Ali Khan (now dead),

Jachhijar Rahman, Wahed Ali Mondol, Momtaj Ali Bepari,

Ranju Mia accompanying the gang. Then he ran toward his

home and alarmed everybody of it. Being panic-stricken he and

his siblings went into hiding inside a nearby jungle next to their

home wherefrom he heard the sound of his parents’ screaming

and vandalizing carried out inside the house. Afterward, he came

out of the hiding place after the Pakistani occupation army and

Razakars had quitted and coming inside home he found his father

lying unconscious, caused by torture.

97. P.W.12 next stated that he heard later on that the Pakistani

occupation army and their accomplice Razakars by launching

attack at the house of Dijesh Chandra Sarkar, south to their house

unlawfully detained him and his friend Abdul Majid, tortured

them inhumanely. Furthermore , he heard that they[the attackers]

detaining Ful Kumari Rani and Sadhana Rani and made their

bangles that are used by married Hindu women broken and

wiped out red vermillion they used on head and spared them

subject to get converted as Muslim.


42

98. P.W.12 also stated that he heard too that the detainee Abdul

Majid was exonerated as he was a Muslim and the gang forcibly

took Dijesh Chandra Sarkar away to the army camp in

Gaibandha, by vehicle. Later on, he heard too that detainee

Dijesh Chandra Sarkar was shot to death. After the event

200/250 Hindu residents of their locality being scared deported

to India. He knew the Razakars he named beforehand as they

were from their neighbouring village.


stated that they did not initiate any case over the event, after

independence achieved. P.W.12 denied the defenec suggestion

put to him that the accused persons he named were not Razakars;

that he did not know them; that he did not see or hear the event

he testified and that what he testified was untrue.

100. P.W. 13 Sri Binoy Kumar Sarkar [66] is a resident of


District Gaibandha. In 1971 he was a student of class X in

Bollomjhar High School. Chiefly he is a hearsay witness.

101. Before testifying the event arraigned P.W.13 made a

narrative as to formation of Razakar Bahini around their locality.

He stated that during the Liberation War, in Gaibandha Sadar


43

Thana Razakar Bahini was formed of Ranju Mia, Abdul Jabbar

Mondol, Wahed Mondol, Montaz Ali Bepari, Asgar Khan,

Jachhijar Rahman and 30/40 others. He knew the Razakars he

named beforehand as they were from their locality.

102. P.W.13 stated that one day, in first part of June, 1971 he got

informed that Pakistani occupation army along with Razakars

were about to launch attack at their village. Then they went into

hiding quitting home. After the attackers had left the site they

came back home and heard that by launching attack at Ambika

Charan Starker’s home the attackers tortured him inhumanly,

looted valuables and left the site guessing him dead and took

away his son Dijesh Chandra Sarkar , on forcible capture. They

being terrified deported to India and returned back after

independence achieved.


stated that he could not say whether Ranju Miah was 10/12 years

old, in 1971; that name of father of accused Ranju Mia was

Abbas Ali; that Samad, the brother of accused Ranju Mia was a

Razakar. P.W.13 denied the defence suggestions put to him that

the accused were not Razakars.


44

104. P.W. 15 Abdul Majid Prodhan [70/71] is a resident of

village- Sakoa under police station- Palashbari of District

Gaibandha. In 1971 he was 22/23 years old and was a teacher of

Bishnopur A R High School. He is the survived victim. The

charge framed arraigns that he was forcibly captured along with

his friend Dijesh Chandra Sarker and eventually he got

exonerated as he was a Muslim. Thus, he is a vital direct witness

to the event of attack arraigned.

105. Before testifying the event P.W.15 narrated the formation of

Razakar Bahini around their locality and activities of accused

persons and their accomplice Razakars. P.W.15 stated that

during the war of liberation, Peace Committee and Razakar

Bahini were formed in Gaibandha aiming to collaborate with the

Pakistani occupation army. He knew two Razakars Asgar Ali

[now dead] and Jabbar Mondol who and their cohort Razakars

used to keep the Sakoa Bridge on Gaibandha-Palashbari

highway, nearer to their house.

106. Next, in narrating the event P.W.15 stated that in 1971 in

the Bangla month Jaistha he went to his friend Gongesh Kumar

Starker’s house. While he was there, he found that a group

formed of Pakistani occupation army men and other Razakars

cordoned off the house. Then his friend Gongesh escaped the


45

home. He too tried to escape but the Razakar Asgar Ali [now

dead] and his cohorts captured him and handed him over to the

Pakistani Army. They then tied him up with a tree. Razakar

Asgar Ali and his cohorts committed looting and unlawfully

detained his friend’s elder brother Dijesh Chandra Sarker and

tied him up with him.

107. P.W.15 also stated that afterward, they were taken to Kabir

para and tortured them putting them down near a truck parked

there. When the attackers got confirmed that he [P.W.15] is a

Muslim, they made him free. Then they took Dijesh Chandra

Sarker and other detainees towards Gaibandha. Dijesh Chandra

Sarker who never came back. After the event, family of

Gongesh Chandra Sarker’s family and neighbouring families

deported to India

108. Defence declined to cross-examine the P.W.15, presumably

for the reason that he has not implicated any of five accused

indicted in this charge no. 01 with the event of attack.

109. P.W.07 Md. Abdul Latif Akondo [63], a resident of village-

Nandina testified simply a fact related to the upshot of the event

of attack. P.W.07 stated that in 1971 Hindu residents of village

Doulatpur deported to India due to fear of life caused by


46

atrocities committed by Razakars he named [Razakar Abdul

Jabbar Mondol, Jachhijar Rahman @ Khoka, Abdul Wahed

Mondol, Montaj Ali, and Razakar Asgar Ali Khan [now dead].

In cross-examination this version of P.W.07 does not seem to

have been controverted or denied even.

110. P.W.08 Md. Shaheb Uddin [62] , a resident of village-

Nandina similarly simply testified that after the atrocities

committed 150/200 Hindu Families of village-Doulatpur

deported to India quitting own homes, in fear of Razakars and

many of them did not return back. This version crucially related

to the end result of atrocious attacks arraigned remained

unshaken in cross-examination.

Finding with Reasoning on Evaluation of Evidence

111. Mr. Mokhlesur Rahman Badal, the learned prosecutor

submits that all the five persons indicted in this charge are found

proved to have had participation and complicity with the attack

launched which resulted in killing of Hindu civilians, destructive

activates and deportation of hundreds of Hindu residents of the

locality to India. Some of witnesses are relatives and neighbours

of victim and that one survived victim also narrated how the

gang had attacked and took away the victim on forcible capture.


47

112. The learned prosecutor next submits that defence could not

controvert what the direct witnesses i.e. P.W.11, P.W.12, P.W.13

and P.W.15 recounted on oath in Tribunal in respect of the event

they experienced. Commission of the crimes arraigned and

accused persons’ participation therewith, being part of the

criminal enterprise has been found proved beyond reasonable

doubt from consistently corroborative evidence of these

witnesses, the learned prosecutor added.

113. Mr. Mohammad Abul Hassan, the learned defence

counsel defending all the accused persons, on contrary,

questioning credibility of witnesses relied upon by the

prosecution submits that in 1971 the accused persons did not

have affiliation in Razakar Bahini; that accused Md. Ranju Mia

was tender aged in 1971; that the P.W.s had no reason of

knowing them beforehand; that the victim Dijesh Chandra Sarker

died in front battle with Pakistani army and Razakars; that no

evidence could be brought to prove the alleged act of killing and

accused persons’ participation and concern therewith and the

P.W.s testified falsely implicating the accused persons , out of

local rivalry.


48

114. Tribunal notes that the gang formed of Pakistani occupation

army, five accused first conducted its attack at Hindu community

at village-Bishnopur under police station-Gaibandha Sadar of

District-[now] Gaibandha.

115. The charge framed also indicts that the event involves

causing inhumane torture to one Ambika Charan Sarkar on

forcible capture, forcible conversion of Hindu women as

Muslim, killing of Hindu civilian Dijesh Chandra Sarkar, and

deportation of hundreds of panicked Hindu residents of the

locality attacked.

116. Prosecution requires proving that the attack was systematic

in nature and the accused persons being part of the criminal

enterprise actively assisted, substantially contributed and

participated to the accomplishment of prohibited acts that

resulted in torture, abduction and murder of two unarmed Hindu

civilians and causing mental harm to defenceless civilians.

117. P.W.11 Sri Prodip Kumar Sarkar, a resident of crime village

recounted what he observed and experienced. Victim Dijesh

Chandra Sarkar was his cousin brother. Narrative made by

P.W.11, a direct witness demonstrates that the gang formed of

Pakistani occupation army, Razakars accused (1) Md. Ranju


49

Miah, (2) Md. Abdul Jabbar Mondol, (3) Md. Jachhijar Rahman

@ Khoka , (4) Md. Abdul Wahed Mondol , (5) Md. Montaz Ali

Bepari @ Momtaj and their cohorts by launching attack at their

house started plundering and looting.

118. Unshaken evidence of P.W.11 also depicts that the

aggressors dragged out his [P.W.11] cousin brother Dijesh

Chandra Sarkar and his friend Abdul Majid [P.W.15], detaining

unlawfully and then tying them up with a tree they started

causing torture to them inhumanely. P.W.11 saw all these

prohibited activities remaining in hiding place. Defence could

not bring anything to assume that it was not practicable of seeing

the aspects of the attack the P.W.11 testified.

119. P.W.11 is the cousin brother of victim Dijesh Chandra

Sarkar. He saw the accused (1) Md. Ranju Miah, (2) Md. Abdul

Jabbar Mondol , (3) Md. Jachhijar Rahman @ Khoka

(absconded), (4) Md. Abdul Wahed Mondol , (5) Md. Montaz

Ali Bepari @ Momtaj and their cohort Razakars plundering and

looting their house, dragging out his cousin brother and causing

inhumane torture by tying him up with a tree. This piece of

version remained unimpeached and it makes obvious that the

accused persons deliberately got engaged in causing brutal


50

torture to detained Dijesh Chandra Sarkar, before he was taken

away toward Gaibandha.

120. During the first phase of attack two female inmates of the

house attacked were coerced to get converted as Muslim and to

ensure it the Pakistani occupation army men and their

collaborators made their bangles broken and wiped out red

vermillion they used on head. P.W.11 heard such coercive acts

from the victims, the female inmates who happened to be his

near relatives.

121. The account of the facts relating to participation of accused

persons leads to the conclusion that the accused persons

consciously facilitated to administer systematic violence as an

instrument even to the female inmates of victims’ family. It

caused intense fear and trauma to them. This prohibited act and

the act of looting and plundering household were not only

intended to create horror but it was undeniably filled of grave

mental harm and detrimental to human rights and normal

livelihood which constituted the offence of ‘other inhumane

act’.

122. P.W. 12 Sri Kanti Bhusan Sarkar is the son of victim

Ambika Charan Sarker. He too experienced how the gang


51

accompanied by the accused persons carried out its atrocious

activities. His evidence demonstrates that on seeing the gang

arriving in front of their house he went into hiding inside a

nearby jungle next to their home wherefrom he heard his parents

screaming and vandalizing carried out inside the house.

123. The above unimpeached version leads to deduce that the

aggressors’ attack was calculated also to cause detriment by

destruction of livelihood of Hindu community in addition to

wiping out pro-liberation residents of Hindu community. What

the P.W.12 recounted in Tribunal in respect of the horrendous

attack gets consistent and strong corroboration from the evidence

of P.W.15.

124. P.W.13 a resident of crime village- Bishnopur sensing

attack went into hiding and later on after the gang of attackers

had left the site he came back home and heard the event. His

hearsay testimony seems to have been corroborated by evidence

of P.W.11, P.W.12 and P.W.15, the three direct witnesses.

125. One crucial matter has been unveiled from evidence of

P.W.13. In addition to narrating the atrocious event P.W.13

stated that Gaibandha Sadar Thana Razakar Bahini was formed

of Ranju Mia, Abdul Jabbar Mondol, Wahed Mondol, Montaz


52

Ali Bepari, Asgar Khan, Jachhijar Rahman and 30/40 others. He

knew the Razakars he named beforehand as they were from their

locality. In cross-examination it has been simply denied. But

defence could not bring anything to diminish it in any manner.

126. We have got it too from evidence of P.W.15 that during the

war of liberation, Peace Committee and Razakar Bahini were

formed in Gaibandha aiming to collaborate with the Pakistani

occupation army. He knew two Razakars Asgar Ali [now dead]

and Jabbar Mondol who and their cohort Razakars used to keep

the Sakoa Bridge on Gaibandha-Palashbari highway, nearer to

their house.

127. It is true that P.W.15 could not recognize other accused

persons and their cohorts while they accompanied the gang in

launching the attack. But it by itself does not diminish the

testimony of P.W.15. Rather, his testimony in its entirety

patently indicates that he has not made any exaggeration.

128. P.W.12 and P.W.15 are vital witnesses in support of the

event arraigned in this charge. Of them P.W.12 is the son of one

victim Ambika Charan Sarker and P.W.15 is a survived victim.

Both of them consistently recounted what they experienced and

observed, in course of the attack launched.


53

129. Uncontroverted evidence of those two P.W.s cumulatively

demonstrates that all the five accused (1) Md. Ranju Miah, (2)

Md. Abdul Jabbar Mondol, (3) Md. Jachhijar Rahman @ Khoka

, (4) Md. Abdul Wahed Mondol, (5) Md. Montaz Ali Bepari @

Momtaj persons culpably and knowingly participated, being part

of the ‘murderous enterprise’ in perpetrating forcible capture of

Ambika Charan Sarker, by launching systematic attack at his

house.

130. What happened next? The invaders caused grave inhumane

torture to Ambika Charan Sarker and the gang accompanied by

the accused persons then left him abandoned guessing dead and

took away his son Dijesh Chandra Sarker on forcible capture.

131. It also stands proved from unshaken and natural evidence of

P.W.15 that at the relevant time he had been at the house

attacked and he too was unlawfully detained by the gang along

with Dijesh Chandra Sarker, the elder brother of his [p.w.15]

friend and just before the gang started moving back taking them

with them allowed him [P.W.15] to walk free knowing that he is

a Muslim. This version could not be impeached. Thus, it may be

validly concluded that the accused persons were extremely

violent to the Hindu population. We find no reason to disbelieve

the testimony made in this regard by the P.W.15.


54

132. Rational appraisal of evidence of P.W.11, P.W.12 and

P.W.15 proves it irrefutably that unlawfully detained victim

Dijesh Chandra Sarker was taken away toward Gaibandha by

vehicle and since then he could not be traced. However, the

P.W.s testified that they learnt that the victim was shot to death.

133. Defence argued that in absence of any evidence it could not

be proved that the detained Dijesh Chandra Sarker was

annihilated, as arraigned. But we are not with this submission.

The detained victim could not be traced since the event of taking

him away on forcible capture, it stands proved. This very fact is

sufficient to deduce it lawfully that the victim was wiped out,

after taking him away toward Gaibandha, on forcible capture.

134. Since the accused persons by their explicit act of assistance

and contribution during the first phase of attack at victim’s house

in taking away the victim with them, on forcible capture it may

be justifiably deduced that they were concerned also with the act

of killing the detained victim. The accused persons thus cannot

evade responsibility of materializing the mission which ended in

killing the detained victim Dijesh Chandra Sarker.

135. Tribunal notes that dead body is not required to prove the

offence of ‘murder’ as crime against humanity which occurs in


55

context of war time situation. It is now well settled. In war time

situation some aspects of systematic attack happen in sly and

beyond notice of people. Since the time when the killing was

committed was not times of normalcy, it is inappropriate to apply

rules of national systems that require the production of a body as

proof to death.

136. Thus, even in absence of dead body it may be well inferred

from facts and circumstances unveiled that the detained victim

who was taken away unlawfully, violating the customary

international law and the laws of war was eventually killed. In

this, regard we recall the observation of ICTY Appeal Chamber

made in the case of Kvocka which is as below:

“[…….] proof beyond reasonable

doubt that a person was murdered does

not necessarily require that the dead

body of the person been recovered. The

fact of a victim’s death can be inferred

circumstantially from all of the

evidence presented to the Trial

Chamber. All that is required to be

established from that evidence is that

the only reasonable inference from the

evidence is that the victim is dead as a

result of acts or omissions of the

accused or of one or more persons for


56

whom the accused is criminally

responsible.”

[Kvocka, ICTY Appeal Chamber, Judgment 28 February 2005, para 260]

137. It has been unveiled too from unimpeached narrative of

P.W.12 and P.W.15 that Ambika Charan Sarker who was

subjected to severe inhumane torture at his house, in conjunction

with the attack succumbed to injuries two months later. That is

to say, prohibited barbarous acts conducted not only caused

injuries to him but the same resulted in his death as well.

138. It was a willful killing as death of injured victim Ambika

Charan Sarker was the result of the prohibited action(s) of the

accused persons and their cohorts, who intended to cause death

as they understood that the torture caused was likely to lead to

death of the victim, a protected civilian.

139. Accused persons’ act of presence with the gang while

launching attack itself was rather an act of ‘participation’,

‘abetment’ and ‘facilitation’ to the accomplishment of victim’s

confinement and torture caused to him. Such deliberate acts of

accused persons were specifically directed to ‘commit’ the

crimes in question. Facts and circumstances unveiled suggest this

irresistible conclusion.


57

140. ‘Committing’ connotes an act of ‘participation’, physically

or otherwise, directly or indirectly, in the material elements of

the crime charged through positive acts, whether individually or

jointly with others. It has been observed by the ICTY Trial

Chamber in the case of Stakic that-

"[.....]a crime can be committed individually

or jointly with others, that is, there can be

several perpetrators in relation to the same

crime where the conduct of each one of them

fulfils the requisite elements of the definition

of the substantive offence."

[ Case No. IT-97-24-T, Judgment : 31 July

2003, Para-528]

141. Participation and conscious concern of all the five accused

in conducting criminal acts, sharing common intent, as found

proved from evidence of direct witnesses including a survived

victim[P.W.15] could not be impeached in any manner. Thus, the

accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar Mondol, (3)

Md. Jachhijar Rahman @ Khoka, (4) Md. Abdul Wahed Mondol

and (5) Md. Montaz Ali Bepari @ Momtaj being part of the

criminal enterprise incurred equal liability for the crimes

committed.


58

142. It stands proved that the first phase of attack ended with

taking away one victim Dijesh Chandra Sarker toward

Gaibandha and all the five accused remained stayed with the

gang when it headed toward Gaibandha after accomplishing

criminal acts in conjunction with the first phase of attack.

143. It is true that there is no evidence as to how, when and

where the next phase i.e. the killing of detained victim was

carried out. But the killing was the end result of the first phrase

of attack to which the accused persons knowingly and actively

participated. Thus, it is lawfully inferred that the accused persons

were ‘concerned’ also in materializing the killing of detained

victim.

144. It is now jurisprudentially settled that in a criminal trial

mere denial is not sufficient to exclude one's testimony if it

inspires credence. In the case in hand, it appears that even

trustworthiness of witnesses particularly the direct witnesses to

material facts could not be tainted by cross-examining them.

Mere putting suggestion to P.W.s in cross-examination that what

they testified implicating accused persons were untrue does not

go with the object of cross-examination, when such suggestion is

blatantly denied by the P.W.s.


59

145. It transpires that the attack was systematic and designed

directing civilian population. The term ‘population’ does not

refer to entire population of particular geographic vicinity. It is

now well settled. In this regard ICTR Trial Chamber observed

in the case of Bisengimana that--

“The term ‘population’ does not

require that crimes against humanity be

directed against the entire population of

a geographical territory or area.”

[Bisengimana, ICTR Trial Chamber,

Judgment, April 13, 2006, para. 50 ]

146. In the case in hand, it has been proved that the attack

arraigned in this charge resulted in killing two civilians, causing

torture and inhumane act and unlawful deportation of numerous

civilians. All these together tend to the conclusion that the

criminal acts proved constituted the offences of crimes against

humanity, by launching systematic attack which was directed

against the ‘civilian population’.

147. We reiterate that a crime need not be carried out against a

multiplicity of victims or entire civilian population in order to

constitute a crime against humanity. In this regard the legal

proposition propounded in the case of Nahimana, Barayagwiza

and Ngeze, ICTR Appeal Chamber is that --


60

“The Appeals Chamber considers that,

except for extermination, a crime need

not be carried out against a multiplicity

of victims in order to constitute a crime

against humanity. Thus an act directed

against a limited number of victims, or

even against a single victim, can

constitute a crime against humanity,

provided it forms part of a widespread

or systematic attack against a civilian

population.”

[ Nahimana, Barayagwiza and Ngeze, ICTR Appeals Chamber, Judgment, November 28, 2007, para. 924]

148. The charge also arraigns that the attack also resulted in

forcible deportation of a number of civilians of the locality

including the inmates of victims’ family. It transpires that

consistently corroborative evidence of P.W.11, P.W.12, P.W.13

and P.W.15 proves it beyond reasonable doubt that immediate

after the event of aggressive attack conducted deliberately the

family inmates of victims and Hindu residents of the locality

attacked, being gravely panicked opted to deport to India.

149. It appears too from testimony of P.W.07 Md. Abdul Latif

Akondo and P.W.08 Md. Shaheb Uddin , the residents of

Nandina, a village neighbouring to the crime village that Hindu


61

residents of village- Doulatpur deported to India due to fear of

life caused by atrocities committed by the accused persons and

their cohorts.

150. As the residents of neighbouring locality P.W.07 and

P.W.08 had natural opportunity of knowing that terror, created

by committing atrocious activities, forced the civilians of the

village attacked to deport. Defence could not impeach it. This

piece of version crucially related to the end result of atrocious

attack gains strong corroboration from the other witnesses who

were directly affected by the atrocities committed.

151. Factual matrix leads to valid inference that the coercion and

horror resulted from the criminal activities by launching attack

eventually ‘forced’ them to deport. Defence could not controvert

it. Tribunal notes that act of causing ‘deportation’ as

enumerated in section 3(2) of the Act of 1973 constitutes the

offence of crimes against humanity.

152. The destruction of private objects of civilians, the brutality

of the killings of perceived followers of war of liberation

collectively amounted to coercion and grave terror, which in the

end forced the residents of the locality attacked to choose to


62

deport to India quitting their own homes, crossing border of

territory of Bangladesh.

153. Such forced deportation was rather upshot of the coercive

situation resulted from the horrific attack to which the accused

persons were active part. ‘Force’ need not be limited to physical

force. It may be caused even by spreading coercion, panic and

terror. In this regard we recall the observation made by the ICTY

in the case of Milorad Krnojelac which is as below:

“Deportation is illegal only where it is forced.

“Forced” is not to be interpreted in a

restrictive manner, such as being limited to

physical force. It may include the “threat of

force or coercion, such as that caused by fear

of violence, duress, detention, psychological

oppression or abuse of power against such

person or persons or another person, or by

taking advantage of a coercive environment.

The essential element is that the displacement

be involuntary in nature, where the relevant

persons had no real choice.”

[ Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-T, ICTY Trial Chamber, Judgment 15 March 2002, para. 475]

154. Defence case as it appears from the trend of cross-

examination is that accused persons were not Razakars; and that


63

Dijesh Chandra Sarkar died in battle with Pakistani occupation

army. There has been no indication that Dijesh Chandra Sarkar

died in battle. Negative assertion need not be proved. Besides,

mere putting such defence suggestions do not negate the

arraignment for which the accused persons have been indicted.

No effort seems to have been made on part of defence intending

to cast doubt on the truthfulness of event of attack and facts

related to it.

155. Other assertions forming defence case are affirmative in

nature, burden to establish which lies upon the defence. Defence

asserts that accused Md. Ranju Miah was 10/12 years old in

1971. But there has been no proof before us in this regard. Date

of birth as stated in the formal charge presumably is based on

NID Card of accused Md. Ranju Mia.

156. But we are not ready to accept the plea taken by the defence

based on NID Card of the accused Md. Ranju Mia. NID Card

cannot be considered as the conclusive proof of its holder’s

actual age. Information as to age contained in NID Card does

not always correspond to its holder’s actual age as it has become

a social practice of showing lesser age by providing incorrect

information as to age of the holder of NID Card.


64

157. Thus, merely relying on the unauthenticated information

contained in NID Card there can be no room to deduce that in

1971 accused Md. Ranju was a tender aged and did not

participate in committing any crime alleged, particularly where it

has been proved that he was affiliated in locally formed Razakar

Bahini and collaborated and assisted the criminal enterprise in

accomplishing crimes arraigned.

158. In the case in hand, the attack was systematic in nature. The

accused persons actively collaborated with the Pakistani

occupation army in conducting the attack directing Hindu

civilians. The crimes committed were not isolated. Those were

‘group crimes’ for accomplishing which all the members forming

the criminal enterprise incurred equal liability.

159. According to jurisprudence propounded says that an

accused will incur individual criminal responsibility for aiding

and abetting a crime committed in violation of international

humanitarian law. It has been patently depicted that the five

accused persons, in exercise of their nexus with the Pakistani

occupation army, deliberately assisted and participated in

carrying out the attack, to further common purpose. Their act and

conduct consisted of practical assistance, encouragement or

moral support to the perpetration of the crime in question.


65

160. On cumulative and rational evaluation of evidence and

circumstances divulged and in light of reasoned finding made

herein above we arrive at decision that prosecution has been able

to prove it beyond reasonable doubt that the accused (1) Md.

Ranju Miah, (2) Md. Abdul Jabbar Mondol , (3) Md. Jachhijar

Rahman @ Khoka , (4) Md. Abdul Wahed Mondol and (5) Md.

Montaz Ali Bepari @ Momtaj, by their act and conduct forming

part of systematic attack pursuant to common design and plan in

materializing the criminal mission participated , aided , abetted

and substantially contributed to the commission of the offences

of ‘confinement’; ‘torture’; 'deportation', 'other inhumane

act' and ‘murder’ as crimes against humanity enumerated in

section 3(2)(a)(g)(h) of the Act of 1973 and thus all the five

accused persons incurred criminal liability under section 4(1) of

the Act of 1973.

Adjudication of Charge No. 02: [04 accused indicted] [Offences of ‘Abduction’; ‘Confinement’; ‘Torture’; ‘Plunder’; ‘Arson’ and ‘Murder’.] 161. Charge: That on 18 October, 1971 at about 8.00 A.M. a

group formed of 8/10 Razakars and 25/30 Pakistani occupation

army men being accompanied by the accused (1) Md. Abdul

Jabbar Mondol (absconded), (2) Md. Jachhijar Rahman alias

Khoka (absconded), (3) Md. Abdul Wahed Mondol (absconded)

and (4) Md. Montaz Ali Bepari alias Momtaj (absconded) by


66

launching attack at village-Nandina under Police station-

Gaibandha Sadar of District-[now] Gaibandha forcibly captured

non-combatant innocent pro-liberation civilians Abu Bakkar,

Tara Akanda, Ansar Ali and Nasim Uddin Akanda from their

houses and their accomplices and Pakistani occupation army men

made them stood in a line in front of the house of Abu Bakkar

and shot them to death.

In conjunction of the attack, the accused persons and their

accomplices forcibly captured Abdus Samad Mollah, Sada Miah,

Faras Uddin and Sekender Ali Mollah of village-Nandina from

their houses and shot them to death and destroyed 40/50 houses

of village Nandina by setting those on fire.

Therefore, accused (1) Md. Abdul Jabbar Mondol (absconded),

(2) Md. Jachhijar Rahman alias Khoka (absconded), (3) Md.

Abdul Wahed Mondol (absconded) and (4) Md. Montaz Ali

Bepari alias Momtaj (absconded) have been hereby charged for

participating, abetting, facilitating, contributing and also for

complicity in the commission of offences of ‘abduction’;

‘confinement’; ‘torture’; ‘arson’ and ‘murder’ as crimes

against humanity as enumerated in section 3(2)(a)(g)(h) read

with section 4(1) of the International Crimes (Tribunals) Act,

1973 which are punishable under section 20(2) of the Act.


67


162. Prosecution intending to establish the arraignment brought

in this charge relies upon seven witnesses and most of them are

relatives of victims who claim to have seen facts related to the

attack that resulted in killings. We require to appraise what the

witnesses have portrayed in tribunal in a rationale way and

keeping the settled principle in mind. Now, first let us eye on

what the witnesses testified.

163. P.W. 01 Md. Abul Hossain Akondo [69] is a resident of

crime village- Nandina under police station- Gaibandha Sadar of

District Gaibandha. In respect of the event arraigned P.W. 01 is a

direct witness. He was teacher in primary school from 1966 to

1969 he. He was the General Secretary of Sahapara Union

Awami League since 1969.

164. P.W. 01 stated that on 17.10.1971 at around 09:00 P.M.

25/30 freedom-fighters came to their house and then he was

arranging serving of food for them. Just then Razakar Abdul

Jabbar Mondol, Razakar Md. Jachhijar Rahman @ Khoka,

Razakar Abdul Wahed Mondol, Razakar Montaz Ali Bepari @

Momtaz and Razakar Asgar Ali Khan [now dead] informed the

Pakistani Army Camp about the arrival of the freedom-fighters at


68

his [P.W.01] home. As soon as the freedom-fighters came to

know about the leakage of their staying there to the Pakistani

Army they went away therefrom.

165. P.W.01 next stated that on 18.10.1971 at around 08:00 A.M

he was at home when he got information that the Razakars he

named along with 25/30 Pakistani occupation army were

approaching toward their village. With this, he went into hiding

inside a nearby bamboo bush. Remaining in hiding there he

witnessed the Razakars and Pakistani occupation army bringing

his cousin brother Ansar Ali, Abu Bakkar, Tara Mia out from

home and they were shot to death there. They [attackers] also

shot down his elderly uncle Nosim Uddin Akondo to death in the

courtyard. In conjunction with the attack, the attackers including

the Razakars also plundered and burnt down their house.

166. P.W. 01 kept stating that the Razakars then went back to

north way from their house and after some time he heard the

sound of indiscriminate gun firing from that end. Then he came

out from the hiding place and found dead bodies of his uncle and

cousin brothers lying and they buried those with the help of

villagers. P.W.01 also stated that he heard later on that the gang,

on their way back had shot down some civilians to death at the


69

locality north to their house. He [P.W.01] knew the accused

persons beforehand as they were from their village.


stated that none of their family initiated any case over the event

he narrated. P.W.01 also stated in reply to specific question put

to him that the Razakars he named dragged out the victims from

house and then they and Pakistani occupation army gunned them

down to death.

168. P.W.01 denied the defence suggestions that the accused

persons did not belong to Razakar Bahini; that the accused were

not present at the crime site and that what he testified was untrue

and tutored.

169. P.W. 02 Md. Nurul Islam Akondo [63] is a resident of

crime village-Nandina under police-station- Gaibandha Sadar of

District Gaibandha. In 1971 he was a student of class IX. He is a

direct witness to the event of attack that resulted in killing his

relatives.

170. P.W. 02 stated that on 17.10.1971 at around 10:00 P.M.

25/30 freedom fighters came to their house. At that night

Razakars of their village Razakar Abdul Jabbar Mondol, Razakar


70

Md. Jachhijar Rahman @ Khoka, Razakar Abdul Wahed

Mondol, Razakar Md. Montaz Ali Bepari @ Momtaz and

Razakar Asgar Ali Khan (now dead) made the freedom-fighters’

shelter at their home leaked to the Pakistani Army Camp. His

father and uncles being aware of it requested the freedom-

fighters to leave their house and consequently the freedom-

fighters had left their house.

171. P.W.02 next testified that on the following day, on

18.10.1971 at around 08:00 A.M. they got the information that

the Pakistani occupation army and the Razakars were moving

toward their house. With this they along with his father and uncle

went into hiding at a place nearer to house wherefrom he saw the

Razakars he named bringing his [P.W.02] uncle Ansar Ali, Tara

Mia, Abu Bakkar at the courtyard, dragging out of room and then

the Pakistani occupation army gunned them down to death there.

They also shot his elderly grand-father Nasim Uddin Akanda to

death who was sitting under a mango tree. Afterwards, the

attackers torched their house.

172. P.W.02 testified that afterward the invaders went back to

north side of their house, toward Mollah para. Later on he

[P.W.02] came to know that the invaders also gunned down

Sekander Ali Mollah, Hossain Ali Mollah, Sada Mollah and


71

Abdul Samad Mollah [in conjunction with the attack]. Finally,

P.W.02 stated that he knew the accused Razakars beforehand as

they were from their village.


stated that during that event, he was in the hiding place alone;

that between the courtyard and his hiding place there was

bamboo bush; that he was 8/10 yards away from the courtyard;

that at the time of the event happened not only Pakistani

occupation army, the Razakars he named as well were also with

them.

174. P.W.02 denied the defence suggestions that that the accused

persons did not belong to Razakar; that they were not present at

the crime sites; that they were not involved with the event he

testified and that what he testified was untrue and tutored.

175. P.W. 03 Md. Abdur Rahim (68) is a resident of village-

Nandina under police station- Gaibandha Sadar of District

Gaibandha. In 1971 he was a student of class IX. He claims to

have witnessed facts related to the event of attack in question.

176. P.W. 03 stated that on 18.10.1971 at about 08:00 A.M he

saw a group formed of 25/30 Pakistani occupation army


72

accompanied by Abdul Jabbar Mondol, Jachhijar Rahman,

Abdul Wahed Mondol and Montaz Ali Bepari @ Momtaz

approaching towards Baluapara. After some time he heard gun

firing from the end of villages-Mollapara, Doulatpur and saw

conflagration.

177. P.W.03 also stated that on the same day at about

10:30/11:00 A.M he saw the Razakars he named and Pakistani

occupation army moving toward south end of their home.

Afterward, he and his nephew Abdus Samad moved to Baluapara

and found bullet hit dead bodies of Abu Bakkar Akondo, Tara

Akondo, Ansar Ali Akondo and Nosim Uddin Akondo. Then

they approached to Mollapara where they found bullet hit dead

bodies of Sekandar Ali Mollah, Hossain Ali Mollah, Sada

Mollah and Abdul Samad Mollah. Therefrom they returned back

home and heard that the aggressors shot down innocent civilians

namely Lal Mia Bepari, Abdul Baki, Khalilur Rahman, Dula

Miah, Mahesh Chandra Mondol from the nearby village-

Doulatpur to death. Then with the help of local people they

buried the dead bodies. Finally P.W.03 stated that the accused

persons were from their village and that’s why he knew them

beforehand.


73

178. On his cross-examination P.W.03 stated in reply to defence

question that during the glorious Liberation war he was 18 years

old; that there was nobody with him where he went into hiding.

P.W. 03 denied defence suggestions that he did not see or hear

the event he narrated; that the accused persons were not

Razakars; that they were not involved in the event he narrated

and that what he testified was untrue or tutored.

179. P.W. 04 Sonabi (75) is a resident of village- Nandina under

police station-Gaibandha Sadar of District Gaibandha. She is the

wife of victim Sekender Ali. In 1971 she had been staying at her

conjugal home. She is a direct witness to the horrific attack she

experienced.

180. In narrating the event P.W.04 stated that in the last part of

Bangla month Aswin in 1971, in morning at around 08:00/09:00

A.M she had been at her conjugal home. At that time the

Pakistani occupation army being accompanied by Razakars

Abdul Jabbar Mondol, Jachhijar Rahman @ Khoka, Abdul

Wahed Mondol, Montaj Ali and their cohort Razakars came to

their house. They dragged out her husband from the room and

taking him at open place near their house shot him to death. The

attackers gunned down her nephew Samad Mollah, brother-in-


74

law Sada Molla and uncle-in-law Hossain Ali to death as well [at

this point the witness broke down into tears].

181. Finally, P.W. 04 added that accused Razakar Abdul Jabbar

Mondol, his sons Razakar Jachhijar Rahman @ Khoka and

Razakar Abdul Wahed Mondol and Montaj Ali were their

[P.W.04] close neighbours and thus she knew them beforehand.

182. P.W.04 denied the defence suggestions that due to local

rivalry with the accused persons she testified untrue narrative

implicating the accused persons.

183. P.W. 05 Umme Kulsum [72] is a resident of village-


Gaibandha. In 1971 she had been staying at her conjugal home at

village-Nandina. She claims to have witnessed the event of

attack alleged that resulted in killing her near relatives.

184. P.W.05 stated that in the last part of Bangla month Aswin in

1971, in morning at around 08:00/09:00 A.M. she had been at

her conjugal home when Pakistani occupation army being

accompanied by Razakars Abdul Jabbar Mondol, his sons

Razakar Jachhijar Rahman @ Khoka and Razakar Abdul Wahed


75

Mondol and Montaj Ali and their cohorts came to their house.

The invaders then shot down her younger brother-in-law Tara

Miah, Abu Bakkar, elder brother-in-law Ansar Ali and uncle-in-

law Nosim Uddin to death, on forcible capture. Then the

attackers set about 25/30 houses on fire including that of their

own and had quitted the site. P.W.05 finally stated that she knew

the accused persons she named beforehand as they were their

neighbours.

185. On his cross-examination, P.W.05 stated in reply to defence

question that in 1971 the house of accused Abdul Jabbar Mondol

and that of their own were intervened by 3-4 houses; and that she

remained stood at home at distance when the army men and

Razakars came to their house. P.W.05 denied the defence

suggestion that she testified untrue narrative out of rivalry with

the accused persons.

186. P.W. 07 Md. Abdul Latif Akando [63] is a resident of

village- Nandina (Baluapara) under police station- Gaibandha

Sadar of District Gaibandha. In 1971 he was a student of class-

IX. He is a near relative of victims. He claims to have

experienced the activities carried out by launching attack at their

house.


76

187. P.W. 07, in narrating the event stated that on 18.10.1971 at

around 08:00 A.M. he had been at home when a group of 25/30

Pakistani occupation army accompanied by Razakars Abdul

Jabbar Mondol, Razakar Md. Jachhijar Rahman @ Khoka,

Razakar Md. Abdul Wahed Mondol, Razakar Md. Montaz Ali

Bepari alias Momtaz and Razakar Asgar Ali Khan (now dead)

arrived at their home. With this he went into hiding inside a

jungle, behind their home wherefrom he saw the Razakars

committing looting at their house.

188. P.W.07 next stated that he also saw [remaining inside

hiding place] the aggressors detaining his uncle Nosim Uddin,

his three cousin brothers Ansar Ali, Tara Mia, Abu Bakkar and

beating them and then taking the detainees to the army men the

Razakars told them that the detainees used to help the freedom

fighters and were followers of the war of liberation. Then the

armed army men shot them [detainees] to death there. He

[P.W.07], remaining in hiding also saw the invaders setting their

house on fire, before they had quitted the site.

189. P.W.07 also stated that after some time he heard the sound

of gun firing. Then he came out from hiding place and found the

bullet hit dead bodies of his uncle and three cousin brothers lying

at courtyard. Finally, P.W. 07 stated that accused Razakars were


77

his neighbours and he knew them beforehand as their home was

nearer to their [P.W.07] house.

190. In cross-examination, defence simply denied the event of

attack that resulted in killing four unarmed civilians. But it

however could not controvert the commission of the crimes and

participation of accused persons therewith. P.W.07 denied the

defence suggestions that he did not know the accused persons;

that the accused were not Razakars and that they were not

involved in the event of killing he testified

191. P.W. 08 Md. Shaheb Uddin [62] is a resident of village-


Gaibandha. In 1971 he was a student of class- VII. He claims to

have witnessed the gang of attackers moving toward the village-

Doulatpur and also experienced facts related to the event of

barbaric attack arraigned in this charge no.02.

192. P.W. 08 stated that on 18.10.1971 at around 08:00 A.M he

was on the bank of the pond of their house. Suddenly he heard

the sound of gun firing and then saw 20/25 Pakistani army men

accompanied by Razakar Abdul Jabbar Mondol, Razakar Md.

Jachhijar Rahman @ Khoka, Razakar Md. Abdul Wahed


78

Mondol, Razakar Md. Montaz Ali Bepari alias Momtaz and

Razakar Asgar Ali Khan (now dead) heading toward village

Doulatpur through the front of their house. They then after

seeing flames from the end of Baluapara moved to Baluapara

where they found bullet hit dead bodies of Tara Akondo, Ansar

Akondo, Abu Bakkar Akondo and Nosim Uddin Akondo lying at

the house of Nurul Uddin Akanda. Then they on their way back

to home saw, remaining in hiding, the Razakars and army men

moving towards Tulshighat Razakar camp

193. P.W.08 next stated that they then moved to Mollapara

where they found people howling and found bullet hit dead

bodies of Sekandar Ali Molla, Hossain Ali Molla, Sada Mia and

Samad Molla lying. Finally, P.W. 08 stated that accused

Razakars were from their neighbouring locality and he knew

them beforehand.


stated that the distance between his house and that of the accused

Jabbar Mondol was almost 100 yards; that when he saw the

accused persons coming, standing on the bank of the pond, his

elder brother was with him and that he heard from his elder

brother, uncle and villagers that the Razakars he named [four


79

accused indicted in this charge] had killed six [06] non-

combatant freedom-fighters.

195. P.W.08 denied the defence suggestions that he did not know

the accused persons; they were not involved with the event he

testified; they were not Razakars; and that what he testified

implicating them was untrue and tutored.


196. Mr. Mukhlesur Rahman Badal the learned conducting

prosecutor in advancing argument in support of this charge drew

attention to ocular evidence of number witnesses who had

natural opportunity of seeing the attack, criminal activities

carried out in conjunction with the attack and how the accused

persons participated in accomplishing the attack. It has been

submitted that the direct witnesses i.e. P.W.01, P.W.02, P.W.03,

P.W.04, P.W.05, P.W.07 happen to be close relatives of victims

and they experienced the horrific attack that resulted in killing in

question.

197. The learned prosecutor also asserted that consistent

testimony of those witnesses proves it beyond reasonable doubt

that the accused persons deliberately and knowingly


80

accompanied the gang chiefly formed of Pakistani occupation

army in locating the site and people to be annihilated. The

accused persons, sharing common intent got engaged with the

criminal mission, to further policy and plan. Their culpable and

conscious act and conduct formed part of the systematic attack

were directed against civilian population. Defence could not

controvert the commission of the killing by launching attack on

the day and at the relevant time as alleged in the charge framed

and also the conscious participation of accused persons

therewith, the learned prosecutor added.

198. Mr. Mohammad Abul Hassan the learned state defence

counsel questioning the credibility of witnesses submits that it

could not be proved that the accused persons were with the gang

or allegedly acted in accomplishing the killings; that in context

of horrific situation the witnesses who claim to be relatives of

victims did not have any space of seeing the commission of the

killings arraigned. It has been further submitted that the accused

persons have been implicated with the event alleged out of

rivalry; that it is not practicable of memorizing what happened

more than four decades back and thus narrative made by the

witnesses does not carry any evidentiary value.


81

199. Tribunal notes that arraignment brought in this charge

centers around the serious crimes of ‘confinement’; ‘torture’;

’looting’ ‘arson’ and ‘murder’ of defenceless civilians. All these

offences were committed in context of war of liberation in 1971.

Prosecution is burdened to establish that on the day alleged and

at the relevant time a gang of attackers being accompanied by the

four accused persons had attacked the house of four victims and

on active and substantial facilitation and contribution of all the

accused indicted in this charge four inmates of the house were

shot to death and houses were set ablaze. Prosecution also

requires proving that on the way back the gang also annihilated

four other civilians.

200. What was the backdrop of attack at village-Nandina? Direct

witnesses, the near relatives of victim came on dock and

described the event in tragic detail. Testimony of P.W.01 a

resident of village-Nandina demonstrates that on 17.10.1971 at

around 09:00 P.M. 25/30 freedom fighters came to their house

and then he was arranging serving of food for them. It could not

be refuted.

201. It also depicts from testimony of P.W.01 that the accused

Razakar Abdul Jabbar Mondol, Razakar Md. Jachhijar Rahman

@ Khoka, accused Abdul Wahed Mondol, accused Montaz Ali


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Bepari @ Momtaz and Razakar Asgar Ali Khan [now dead] who

were from their [P.W.01] village made the arrival of freedom-

fighters there leaked to the Pakistani occupation army. The

freedom-fighters quitted the place as soon as they came to know

about the leakage of their staying there to the Pakistani Army.

The designed attack arraigned was launched on the following

day at about 08:00 A.M.

202. The above crucial version of P.W.01 which relates to reason

of launching designed attack at the house where the freedom

fighters got sheltered, just on the following morning .At the same

time it may be unerringly inferred that none but the accused

persons, the neighbouring residents despite being Bengali had

acted as loyalists of the Pakistani occupation army by making the

staying of freedom-fighters leaked. It may be inferred too that

the accused persons had conscious close nexus with the locally

stationed Pakistani occupation army, as their notorious

collaborators.

203. This proved fact leads to the conclusion that the mens rea of the

accused persons in attacking the house of victims was to annihilate the

freedom-fighters and the inmates of the house who provided support

to them in getting sheltered there. The evidence and relevant and

surrounding circumstances prove it indisputably. Taking it into


83

account we are forced to deduce it too that none but the accused

persons, the residents of the same village enthusiastically made

the fact of staying of freedom-fighters leaked to the Pakistani

occupation army.

204. Now, let us weigh and evaluate the evidence presented to

arrive at decision as to how the event of killing was conducted

and how the accused persons participated and contributed in

effecting the brutal annihilation.

205. The event of attack happened on the following morning i.e.

on 18.10.1971 at around 08:00 A.M. Brutal killing of four

civilians by launching attack and accused persons’ participation

therewith remained undisputed. Four defenceless civilians

[Ansar Ali, Abu Bakkar, Tara Mia and Nosim Uddin Akondo]

were gunned down to death. P.W.01, a near relative of victims

saw the attack remaining in hiding inside a nearer jungle which

was quite practicable. Defence does not seem to have attempted

to question practicability of seeing the killing as testified by

P.W.01.

206. Killing of four civilians, during first phase of attack and

accused persons’ participation therewith remained undisputed.

P.W.01 found dead bodies of his uncle and cousin brothers lying


84

at the site after the gang went back to north way from their

house. This fact remained uncontroverted.

207. Thus, the systematic attack launched at the house of

P.W.01, killing four of his relatives stand proved. Presumably,

finding none of freedom-fighters who got sheltered at the house

of P.W.01 the gang accompanied by the accused persons had

carried out aggressive killing of inmates of the house.

208. In cross-examination, P.W.01 in reply to specific question

put to him that the Razakars he named dragged out the victims

from house and then they and Pakistani occupation army gunned

them down to death. That is to say, killing carried out at first

phase and participation of accused persons therewith have been

affirmed.

209. In respect of the next phase of attack at village-Nandina, as

arraigned P.W.01 recounted that some time after the gang had

left the site he heard the sound of indiscriminate gun firing from

that end. He heard later on that the gang on their way back had

shot down some civilians to death at the locality north to their

house.


85

210. P.W.02, another direct witness and near relative of victims

of first phase of killing also consistently stated that he [P.W.02]

later on came to know that the invaders also gunned down

Sekandar Ali Mollah, Hossain Ali Mollah, Sada Mollah and

Abdul Samad Mollah [in conjunction with the next phase of

attack] to death.

211. The above corroborative version of P.W.01 and P.W.02

relating to second phase of killing remained unimpeached. Both

phases of killing as unveiled were linked to each other.

Therefore, it is lawfully inferred that the accused persons were

active participants to the accomplishment of killing four other

civilians namely Sekandar Ali Mollah, Hossain Ali Mollah, Sada

Mollah and Abdul Samad Mollah, in conjunction with the next

phase of attack as well.

212. P.W. 02 Md. Nurul Islam Akondo too is a relative of

victims. He too watched how the gang accompanied by the

accused persons and army men attacked their house. His ocular

testimony demonstrates that the accused persons dragged out his

[P.W.02] uncle Ansar Ali, Tara Mia, Abu Bakkar at the

courtyard and then the Pakistani occupation army gunned them

down to death there. His elderly grand-father Nasim Uddin

Akanda, sitting under a mango tree was also shot to death.


86

213. P.W.02 recounted the above tragic and violent criminal

activities which he watched remaining in hiding at a place nearer

to house. It appears that what the P.W.02, a direct witness

narrated gains consistent corroboration from evidence of P.W.01,

another direct witness.

214. In cross-examination it has been affirmed that P.W.02 was

about 8/10 yards away from the courtyard[ when the event was

being conducted] and that at the time of the event happened not

only Pakistani occupation army, the Razakars he named as well

were with them.

215. Thus, observing the event of attack that resulted in brutal

killing, remaining in hiding as testified by the P.W.02 does not

suffer from any impracticability. The accused persons were from

their [P.W.02] village and thus naturally he could recognize them

participating actively in materializing the killing.

216. P.W.03 saw the four accused accompanying the gang.

Reason of knowing the accused persons as testified by P.W.03

has not been disputed. P.W.03 however does not claim to have

witnessed the act of killing. But the event of killing civilians

could not be controverted and what he watched was obviously

related to the perpetration of killing eight civilians.


87

217. It transpires that before the attack was launched P.W.03, a

resident of crime village saw the gang formed of 25/30 Pakistani

occupation army accompanied by accused Abdul Jabbar Mondol,

Jachhijar Rahman, Abdul Wahed Mondol, Montaz Ali Bepari @

Momtaz approaching towards the crime sites and after some time

he heard gun firing from the end of Mollapara, Doulatpur and

saw conflagration. Later on, after the gang had quitted the sites

P.W.03 found bullet hit dead bodies lying at the sites.

218. Presumably, the accused persons sharing common intent

and to further the purpose were with the gang and thereby they

substantially facilitated and contributed to the commission of

brutal killing of numerous civilians. It stands proved that the

mayhem was carried out for couple of hours directing unarmed

civilians with the active assistance of four accused, the local

Razakars and collaborators. Evidence of P.W.01, P.W.02 and

P.W.03 cumulatively suggests this irresistible conclusion.

219. P.W. 04 Sonabi is the wife of victim Sekender Ali. She is a

direct witness to the horrific attack she experienced. She too

witnessed the gang arriving at their house, being accompanied by

accused persons who dragged out her husband from the room

and taking him at open place near their house and shot him to

death.


88

220. The above crucial version goes consistently with the

evidence of P.W.01 and P.W.02, the two other direct witnesses.

The ocular testimony of P.W.03 also demonstrates that the

attackers gunned down her nephew Samad Mollah, brother-in-

law Sada Molla and uncle-in-law Hossain Ali to death as well.

The event of killing thus stands proved.

221. P.W.04 saw the accomplishment of brutal killing of her

husband and two other in-laws. It could not be controverted. It

happened on active facilitation and contribution of the accused

persons, in day time. Accused were their close neighbours. Thus,

naturally she could recognize the accused persons participating

in carrying out criminal acts. There has been no reason of falsely

implicating the accused persons with the brutal killing. In

recounting the tragic event of killing dear ones P.W.04 broke

down into tears, on dock. This demeanor adds strong assurance

as to the truthfulness of the narrative she made in relation to the

barbaric event.

222. Besides, in cross-examination accused persons’ active

participation to the commission of the killing has been affirmed

as P.W.04 stated in reply to defence question that the accused

Razakars dragged out her husband from home and handed him

over to the Pakistani army men who then shot him to death.


89

223. P.W.05 Umme Kulsum had been at her conjugal home, at

the relevant time. She saw the gang formed of army men and

Razakars accused persons killing her father-in-law Nasir Uddin

and three brothers of her husband namely Tara Mia, Abu Bakar

and Ansar Ali. It also depicts from her ocular testimony that after

accomplishing the killing the gang burnt down 25/30 huts

including their house. Defence simply denied what the P.W.05

testified. But it could not bring anything, by cross-examining the

P.W.05 to taint the truthfulness of her version.

224. Besides, in cross-examination of P.W.05 the attack

conducted by the accused Razakars and army men seems to have

been affirmed as P.W.05 in reply to defence question stated that

she had been at their home ‘when the Razakars and army men

had launched the attack’.

225. How could the P.W.05 recognize the accused persons? The

accused persons were her neighbours, P.W.05 testified. It has

been affirmed in cross-examination as well. Thus, it was

practicable of recognizing the accused persons accompanying the

gang. Defence does not deny that the accused persons were

Razakars.


90

226. The event of brutal annihilation of four near relatives was

indeed extremely tragic which the P.W.05 had to experience as

spectator. It happened within her sight. Such horrific experience

caused immense trauma to P.W.05 which cannot be healed in

exchange of anything. P.W.05, on the same day later on heard

that some more civilians of their locality were killed.

227. P.W.07 Md. Abdul Latif Akando, a relative of victims of

the first phase of attack also witnessed the gang formed of army

men and the accused Razakars launching attack at their house

that resulted in killing his uncle and three cousin brothers and

setting their house on fire, on substantial contribution, culpable

assistance and explicit instigation of the accused persons. P.W.07

found the bullet hit dead bodies of victims lying in the courtyard,

after the gang had moved back toward Doulatpur.

228. Defence could not taint the above ocular version of P.W.07,

crucially related to the event of killing, the upshot of the

designed attack and accused persons’ participation therewith.

Accused persons were their nearer neighbours, P.W.07 testified.

It could not be refuted. Thus, naturally he could recognize the

accused persons accompanying the gang in perpetrating the

killing, by their culpable act and conduct which were rather

instigation, contribution, aiding and encouraging. We do not find


91

any reason to keep the evidence of P.W.07 aside from

consideration. Core evidence of P.W.07 relating to the killing

and accused persons’ participation therewith finds consistent

corroboration from evidence of other direct witnesses.

229. Testimony of P.W.05 and P.W.07 goes consistently with

what has been narrated by P.W.01, P.W.02, and P.W.04 who too

had practicable occasion of seeing the attack and criminal acts

carried out by the gang accompanied by the accused persons, in

conjunction with the attack, as direct witnesses.

230. P.W.08 Md. Shaheb Uddin, a resident of village-Nandina on

the day of the event at about 08:00 A.M heard gun firing and

then saw a group formed of 20/25 Pakistani occupation army

accompanied by accused persons and Razakar Ali Asgar

Khan[now dead] moving toward village-Doulatpur.

231. Defence could not bring anything to taint the above version

which is a pertinent fact and intimately related to the attack and

that the group of attackers formed of army men and accused

persons. He knew the accused persons beforehand as they were

their neighbours, P.W.08 stated. This fact as has been testified by

P.W.08 gains strong corroboration for P.W.03 who too saw the


92

gang accompanied by the accused persons approaching toward

the crime sites.

232. P.W.08 does not claim to have seen the event of killing

arraigned. As a resident of the crime village naturally he moved

to the sites, after the gang went back, quitting the sites. On

visiting the sites later on P.W.08 found dead bodies of Tara

Akanda, Ansar Akanda, Abu Bakar Akanda and Nasim Uddin

lying at the house of Nurul Uddin Akanda [victims of the first

phase of attack]. P.W.08 also saw bullet hit dead bodies of four

other civilians [victims of second phase of attack] at Nandina.

233. In absence of anything contrary, moving the gang toward

the crime site at the relevant time, as testified by P.W.03 and

P.W.08 indisputably indicates that the killing of numerous

civilians was perpetrated not by any other group of attackers but

by the gang formed of Pakistani occupation army accompanied

by the accused persons. Besides, what the P.W.03 and P.W.08

stated gains strong corroboration from the evidence of other

direct witnesses who saw the accused persons actively

participating to the commission of the first phase of killing.

234. We are in no doubt that the witnesses, the near relatives of

victims sustained grave mental harm and trauma by witnessing


93

acts filled of brutality committed against their dear ones. Burning

down numerous houses, in conjunction with the attack as found

proved obviously added harm to survived civilians and indeed

involved serious despondency to the protected civilians.

Malicious intent behind such destructive activities was to spread

terror amongst the pro-liberation civilians.

235. Destruction of numerous houses by setting those on fire was

indeed utter great contempt for the people and their normal

livelihood. Therefore, devastating activities by arson causing

serious detriment to the ‘normal livelihood’ of civilians including

relatives of victims, in conjunction with the attack constituted the

offence of ‘other inhumane act’ as crime against humanity.

236. How the accused persons acted in course of first phase of

attack? We have got it proved from the ocular evidence of

P.W.01, P.W.02, P.W.04, P.W.05 and P.W.07, the near relatives

of victims of first phase of killing that all the four accused Md.

Abdul Jabbar Mondol, Md. Jachhijar Rahman alias Khoka, Md.

Abdul Wahed Mondol and Md. Montaz Ali Bepari @ Momtaj,

being part of collective criminality actively participated by

providing substantial contribution, instigation and provocative

act in committing killings unarmed civilians, destructive

activities, sharing intent of the enterprise.


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237. Tribunal notes that an act of abetment as appears in the Act of

1973 is punishable. And the act of abetment encompasses ‘approval’,

‘encouragement’, ‘assistance’ or support’ that contributes

substantially to the accomplishment of the actual crime. ‘Aiding’

involves the act of assistance and ‘abetting’ needs providing

encouragement and moral support to the commission of crimes,

the outcome of the attack. In the case in hand, the accused

persons not only abetted but substantially aided to the

perpetration of the killings, by their act and conduct, as co-

perpetrators.

238. It is now well settled that an accused when he is found to

have had contribution to the commission of crimes in execution

of a common criminal purpose is subject to criminal liability as a

form of ‘commission’ of a crime.

239. Criminal responsibility for any crime enumerated in section

3(2) of the Act of 1973 is incurred not only by individuals who

physically committed the crime alleged, but also by individuals

who participated in and substantially contributed to the

commission of a crime in question in other ways, ranging from

its initial planning to its execution.


95

240. Already we have inferred that all the four accused persons

were active part of the agreed criminal mission. That is to say,

they were aware about the designed plan. In the case in hand, the

accused persons instigated, committed, aided and abetted to the

commission of criminal acts and each of these modes of

participation independently gave rise to their criminal

responsibility.

241. Thus, viewing on facts and circumstances unveiled we are

of the view that all the four accused persons participated, as co-

perpetrators, being part of the joint criminal enterprise in

committing the killings of civilians, pursuant to common design

and plan, sharing common criminal intent and knowing probable

consequence.

242. We reiterate that the expression ‘common purpose’, ‘awareness

of foreseeable consequence’ of act or conduct and ‘intent’ are the key

factors involved with the notion of JCE liability. It is now well

resolved that the liability mode contained in section 4(1) of the Act of

1973 refers to ‘common plan of collective criminality’ which

corresponds to JCE [Basic Form].

243. According to the settled jurisprudence a person is said to

have participated in a joint criminal enterprise by personally


96

committing the agreed crime, or by assisting the principal

offender in committing the agreed crime as a co-perpetrator, by

facilitating the commission of the crime by the actual offender.

Thus, if the agreed crime is committed by one or other of the

participants in a joint criminal enterprise, all the members in that

enterprise are equally guilty of the crime committed regardless of

the part played by each in its commission, or accomplishment.

244. Crimes arraigned in this charge did not result from the

criminal propensity of single individual[s] forming part of the

group but constituted manifestations of collective criminality. It

stands proved that the crimes in question, the upshot of the attack

were carried out by a group which acted in pursuance of a

common criminal design. Tribunal notes that agreement or

understanding for the common plan in conducting an attack is to

be inferred from facts emerged in evidence. It need not be

tangible. This view finds support from the observation made by

the ICTY which is as below:

“The existence of an agreement or

understanding for the common plan,

design or purpose need not be express,

but may be inferred from all the

circumstances.”

[Tadic Appeal Judgement, para. 227; see also Krnojelac Trial Judgement, para. 80]


97

245. In the case in hand, explicit provocative and contributory

acts and conduct of accused (1) Md. Abdul Jabbar Mondol, (2)

Md. Jachhijar Rahman @ Khoka, (3) Md. Abdul Wahed Mondol

and (4) Md. Montaz Ali Bepari @ Momtaj , as already found

proved had a tangible causal link with the event of killing

accomplished. Facts and circumstances unveiled in trial lead to

an irresistible inference that the accused persons agreeing with

the common plan and purpose of the gang had acted as co-

perpetrators in accomplishing the crimes in question.

246. It has been found proved that the accused persons were

present at the crime site with the gang not as mere spectator.

Their culpable act substantially contributed to the commission of

gunning down the civilians to death. Such supportive and

encouraging acts together with instigating utterance of the

accused persons were significantly contributory to the actual

commission of the annihilation of numerous civilians.

247. It stands proved that on explicit instigation and signal of the

accused persons four detainees were gunned down to death by

the principals, the army men, in conjunction with the first phase

of attack. Such provocative act of the accused persons was

indeed specifically directed to assist and encourage and to lend

support to the perpetration of annihilation of the victims.


98

248. Devastating activities by burning down houses were carried

out too, in conjunction with the attack. In the case in hand, facts

and pattern of attack lead to the conclusion that pursuant to

designed plan the accused persons voluntarily participated in all

aspects of the attack, as active and loyal activists of the Pakistani

occupation army, sharing common intent.

249. It is now jurisprudentially agreed that when criminal

purpose is carried out by a group pursuant to common design

there exists no distinction between the ‘finger man’ and the

‘trigger man’. This view finds support from the observation

made by the ICTY Appeal Chamber, in the case of Tadic, that

–

“Although only some members of the

group may physically perpetrate the

criminal act (murder, extermination,

wanton destruction of cities, towns or

villages, etc.), the participation and

contribution of the other members of

the group is often vital in facilitating

the commission of the offence in

question. It follows that the moral

gravity of such participation is often no

less – or indeed no different – from that

of those actually carrying out the acts

in question.”


99

[ICTY Appeal Chamber, Tadic Case No.: IT-94-1-A, Judgment 15.7.1999, para 191]

250. The revenge and abhorrence arising out of failure to capture

and liquidate the counterpart, the freedom-fighters who got

sheltered at village-Nandina, pursuant to designed plan prompted

the accused persons and the army men to conduct the attack

directing the civilian population of village-Nandina that resulted

in large number of killings, destructive activities, we are forced

to deduce it, in view of facts divulged from the evidence

tendered. Thus, this ‘context’ itself prompts us to conclude that

the criminal acts carried out by the accused persons indisputably

formed part of ‘systematic’ attack directed against the unarmed

Bengali civilian population.

251. In the case in our hand, we are of the view that the accused

persons had acted having ‘awareness’ coupled with their conscious

decision to accompany the gang to the crime site. Antagonistic

stance against the war of liberation, the freedom-fighters and

pro-liberation civilians prompted the accused persons belonging

to Razakar Bahini in designing the attack targeting the freedom-

fighters who got stayed at the house attacked on the preceding

night, we conclude.


100

252. It has been argued by the learned state defence counsel that

it is not practicable of memorizing what happened more than

four decades back and thus narrative made by the witnesses does

not carry any evidentiary value.

253. We are not agreed with the above defence submission. In

dealing with the arraignments relating to atrocious events

occurred in 1971 during the war of liberation we are to keep it in

mind that the event happened in startling context and narration

made by the witnesses in court chiefly on core aspect of the

event they experienced may remain still alive in their memory.

Research on human cognition suggests that a piece of

information or act causing immense trauma, once it is stored in

long-term memory, stays alive. Trauma stored in their episodic

memory has reliably portrayed the event.

254. On totality of evidence tendered it is found proved that the

attack was designed and planned one to which the accused

persons were conscious part, in exercise of their nexus with

Pakistani occupation army and locally formed Razakar Bahini.

Admittedly, accused Md. Abdul Jabbar Mondol is the father of

two accused Md. Jachhijar Rahman @ Khoka and Md. Abdul

Wahed Mondol. Presumably, they had carried out atrocious


101

activities in a concerted way forming a criminal syndicate of

their own, being part of the gang.

255. The accused persons are found to have had active

participation in effecting the killing of eight civilians, in two

phases, in conjunction with the attack conducted at village-

Nandina. Brutality shown in materializing the object of the

mission is indeed a fragmented portrayal of horrendous atrocities

carried out in 1971 during the war of liberation directing civilian

population.

256. Both phases of killing happened at village-Nandina. Abdus

Samad Mollah, Sada Miah, Faras Uddin and Sekender Ali

Mollah of village-Nandina, although killing sites were different.

But both the phases of attack were conducted by the same gang

accompanied by the four accused persons. Seeing the gang

moving toward the next site together with the fact of finding

bullet hit dead bodies of four civilians impels unerringly that

none but the same gang with the active assistance and

collaboration of the accused persons had carried out this phase of

killing as well.

257. In view of the factual matrix emerged in evidence there is

no escape from the conclusion that common design of all the


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accused persons was to cause death of a number of targeted

civilians and thus none of the group including the accused

persons can evade the responsibility of the act of killing.

258. It has been proved that intending to implement collective

and designed criminal plan all the members of the group of

attackers including the accused persons had acted in different

manner and presumably each of them provided different

contributions which substantially impacted in achieving the

ending goal, the killing of civilians, on forcible capture.

259. Killing of eight civilians was thus the outcome of 'collective

criminality' and the accused persons being the members of the

joint endeavor thus incurred equal liability as co-perpetrators. In

this regard, we may recall the observation of the ICTY Trial

Chamber, in the case of Tadic that-

“In sum, the accused will be found

criminally culpable for any conduct

where it is determined that he

knowingly participated in the

commission of an offence that violates

international humanitarian law and his

participation directly and substantially

affected the commission of that offence

through supporting the actual

commission before, during, or after the


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incident. He will also be responsible

for all that naturally results from the

commission of the act in question”

[Prosecutor v. Tadic, ICTY Trial Chamber, Case No. IT- 94-1-T, Judgment 7 May, 1997, paragraph 692]

260. Conscious participation of accused persons as loyalists of

Pakistani occupation army in conducting aggressive criminal acts

gave rise to their explicit liability. The deliberate culpable acts of

accused persons, agreeing with the object of the designed attack

on the unarmed civilians was indeed a grave violation of the

principles of international humanitarian law arising from the

Geneva Conventions.

261. Pattern and magnitude of attack and mode of participation

of the accused persons in perpetrating the crimes in question

together tells explicitly what extent of antagonism the accused

(1) Md. Abdul Jabbar Mondol, (2) Md. Jachhijar Rahman @

Khoka, (3) Md. Abdul Wahed Mondol and (4) Md. Montaz Ali

Bepari @ Momtaj used to carry in their mind, to further policy

and plan of resisting the war of liberation and the pro-liberation

civilians.


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262. On cumulative and rational evaluation of evidence and

circumstances revealed and pursuant to reasoned finding made

herein above we arrive at decision that prosecution has been able

to prove it beyond reasonable doubt that the accused (1) Md.

Abdul Jabbar Mondol, (2) Md. Jachhijar Rahman @ Khoka, (3)

Md. Abdul Wahed Mondol and (4) Md. Montaz Ali Bepari @

Momtaj, by their act and conduct forming part of systematic

attack pursuant to common design and plan in materializing the

criminal mission participated , aided , abetted and substantially

contributed to the actual commission of the ‘confinement’,

‘other inhumane act’ and ‘murder’ as crimes against humanity

enumerated in section 3(2)(a)(g)(h) of the Act of 1973 and thus

all the four accused persons incurred criminal liability under

section 4(1) of the Act of 1973.

Adjudication of Charge No. 03: [04 accused indicted] [Offences of ‘Abduction’; ‘Confinement’; ‘Torture’ and ‘Murder’]

263. Charge: That on 18 October 1971 at about 10.00 A.M. with

a group formed of 8/10 Razakars and 25/30 Pakistani occupation

army being accompanied by accused (1) Md. Abdul Jabbar

Mondol (absconded), (2) Md. Jachhijar Rahman alias Khoka

(absconded), (3) Md. Abdul Wahed Mondol (absconded) and (4)

Md. Montaz Ali Bepari alias Momtaj (absconded) by launching

attack at village-Doulatpur under Sahapara Union, Police station-


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Gaibandha Sadar of District[now]-Gaibandha forcibly captured

Lal Miah Bepari, Abdul Baki, Khalilur Rahman, Dula Miah,

Mahesh Chandra Mondol and then killed them at the crime site.



Abdul Wahed Mondol (absconded) and (4) Md. Montaz Ali

Bepari alias Momtaj (absconded) have been charged for actively

participating, abetting, facilitating, contributing and also for

complicity in the commission of offence of ‘confinement’; and

‘murder’ as crimes against humanity as enumerated in section

3(2)(a)(g)(h) read with section 4(1) of the International Crimes

(Tribunals) Act, 1973 which are punishable under section 20(2)

of the Act.


264. This charge involves the commission of killing five

civilians of village-Doulatpur by launching attack on 18 October

1971 at about 10.00 A.M. This charge rests upon testimony of

seven witnesses i.e. P.W.02, P.W.03, P.W.04, P.W.05, P.W.06,

P.W.07 and P.W.08. All of them are hearsay witnesses,

excepting P.W.06. Many of them are the near relatives of victims

of the event of brutal killings arraigned in charge no.02.


106

265. The event arraigned in charge no.02 happened on the same

day and just two hours prior to the event arraigned in this charge

no.03, happened at village- Doulatpur. Actually it appears that

the event of attack arraigned in this charge was rather recurrence

of attack arraigned in charge no.02, carried out at village-

Nandina. Now, let us see what the P.W.s have testified in

relation to the arraignment brought in this charge no.03 which

was continuation of the preceding event of attack.


village- Nandina under police station- Gaibandha Sadar of

District Gaibandha. He chiefly testified the event arraigned in

charge no.02, as a direct witness. He however also testified what

he heard about the killing defenceless civilians that happened on

the same day at village-Doulatpur [as arraigned in this charge

no.03].

267. P.W.02 stated that later on [on the same day after the event

of attack arraigned in charge o. 02] he came to know that the

aggressors he named [Razakars Md. Abdul Jabbar Mondol, Md.

Jachhijar Rahman alias Khoka , Md. Abdul Wahed Mondol and

Md. Montaz Ali Bepari alias Momtaj] and Pakistani army men

shot down non-combatant civilians namely Lal Mia Bepari,

Abdul Baki, Khalilur Rahman, Dula Miah, Mahesh Chandra


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Mondol of village-Doulatpur to death. P.W.02 testified that he

knew the accused persons beforehand as they were from their

neighbouring locality.

268. In cross-examination, P.W.02 denied the defence

suggestions put to him that the accused were not Razakars; that

they were not concerned with the event he testified and that what

he testified implicating the accused persons was untrue and

tutored.

269. P.W. 03 Md. Abdur Rahim [68] is a resident of village-

Nandina under police station-Gaibandha Sadar of District

Gaibandha. He chiefly testified the event arraigned in charge

no.02, as a direct witness. He however also testified what he

heard about the killing of defenceless civilians that happened on

the same day at village-Doulatpur [as arraigned in this charge

no.03].

270. P.W.03 stated that later on [ on the same day after the event

of attack arraigned in charge no.02] on returning back home he

came to know that non-combatant civilians namely Lal Mia

Bepari, Abdul Baki, Khalilur Rahman, Dula Miah, Mahesh

Chandra Mondol of village Doulatpur were shot to death and

their dead bodies were buried by the locals.


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271. In cross-examination, P.W.03 denied the defence

suggestions put to him that he did not hear the event he testified;

that the accused persons were not Razakars and they were not

associated with the event of killing he heard and that what he

testified implicating the accused was untrue and tutored.

272. P.W. 04 Sonabi [75] is a resident of village- Nandina under

police station- Gaibandha Sadar of District Gaibandha. In 1971

she had been staying at her conjugal home. She is a direct

witness to the event of killing her husband and near relative as

arraigned in charge no.02. In addition to it she testified what she

heard about the event of killing happened on the same day, as

arraigned in this charge no.03.

273. P.W. 04 in narrating what she heard about the event

arraigned in this charge no.03 stated that later on[on the same

day after the event accomplished at village-Nandina] four

civilians of village-Doulatpur were killed and 30/40 houses were

set ablaze. In cross-examination defence simply denied it.

Hearing the event of killing four civilians of village-Doulatpur

could not be controverted in any manner.

274. P.W. 05 Umme Kulsum [72] is a resident of village-



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Gaibandha. She chiefly testified what she experienced when the

gang accompanied by the accused persons perpetrated the killing

of her near relatives, as arraigned in charge no.02. She however

also testified what she learnt about the event arraigned in this

charge no.03.

275. P.W.05 stated that later on, on the same day [after the event

happened at their house] she heard that Sada Molla, Samad,

Sekender Ali and Hossain Ali of Molla Para were killed and on

that day in all 14 civilians of villages-Nandina, Molla Para and

Doulatpur were annihilated. In cross-examination, defence

simply denied this hearsay version so far as it relates to the event

arraigned in charge no no.03.

276. P.W. 06 Somela Khatun [83] is a resident of village-

Doulatpur under police station- Gaibandha Sadar of District

Gaibandha. In 1971 she had been staying at her in-laws house.

She is the wife of one of victims. She is a direct witness to the

act of killing her husband and atrocious acts related to the attack

arraigned.

277. In narrating the event P.W.06 stated that in the last part of

Bangla month Aswin in 1971, in morning at around 08:00/09:00

A.M. she was at home with her husband, fish seller Mahesh and


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others. At that time a group formed of Pakistani occupation

army, accompanied by Razakars Jabbar Mondol, Jachhijar

Rahman Khoka, Wahed Mondol, Montaj Ali Bepari came to

their house and handed over her husband Lal Mia to Pakistani

occupation army on forcible capture when they taking him to an

open space beside the home gunned him down to death.

278. She [P.W.06] witnessed it staying at home taking her 11

days old kid on her lap. The invaders then burnt down 12/14

houses and moved back towards village-Nandina. She later on,

on the same day heard that 14 civilians of villages-Doulatpur,

Nandina and Molla para were annihilated and numerous houses

were set ablaze. Finally, P.W. 06 stated that accused Razakars

she named were their neighbours and thus she knew them

beforehand.

279. In cross-examination, P.W.06 stated in reply to defence

question put to her that their house and the house of accused

Jabbar Mondol were intervened by 5-7 houses and that she did

not initiate any accusation over the event of her husband’s

killing. P.W.06 denied the defence suggestions that she did not

know the accused persons and that she testified falsely

implicating the accused persons with the alleged event she

testified.


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280. P.W. 07 Md. Abdul Latif Akondo [63] is a resident of


Sadar of District Gaibandha. In addition to testify the event

arraigned in charge no.02, as a direct witness he testified what he

learnt later on, on the same day about the event of attack

arraigned in this charge no.03.

281. P.W.07 stated that after the gang of attackers had left the

site at about 10:00/10:30 A.M [after conducting its mission as

arraigned in charge no.02] he along with some villagers moved

to village-Doulatpur and on the way at Molla Para they found

people crying and saw 04 dead bodies lying there. Then on

arriving at village-Doulatpur at the house of Lal Miah he spotted

the dead bodies of Lal Miah and Mahesh Chandra. Later, he also

saw bullet hit dead bodies of Dula Mia, Khalilur Rahman and

Abdul Baki lying at their own house. In cross-examination,

defence simply denied the hearsay version made by the P.W.07.



Gaibandha. His testimony chiefly relates to facts he witnessed in

respect of the event of attack arraigned in charge no.02.

Additionally, he testified what he learnt about the next attack

carried out by the same gang as arraigned in this charge no.03.


112

283. P.W.08 stated that after the gang moved back toward Tulshi

para Razakar camp he went to Molla para where he found the

people howling and also found bullet hit dead bodies of Sekender

Ali Molla, Hossain Ali Molla, Sada Mia and Samad Molla lying

there. Next he moved to Doulatpur where he spotted dead body

of Dual Mia at his house, dead bodies of Lal Mia and Mahesh

Chandra Mondol at the house of Lal Mia. He also found bullet

hit dead bodies of Baki Mia, Khalilur Rahman lying at their

house. In cross-examination, defence simply denied what has

been testified by the P.W.08.

Finding on Evaluation of Evidence Presented

284. Mr. Mokhlesur Rahman Badal the learned prosecutor in

advancing summing up in respect of this charge submits that the

same gang accompanied by the four accused persons after

carrying out attack at village-Nandina, as arraigned in charge

no.02 moved to village-Doulatpur where by launching systematic

attack had killed five unarmed civilians. Horrific situation

created around the localities, in course of earlier attack at village-

Nandina naturally did not leave space to the people of seeing all

the aspects of the recurrent attack launched at village-Doulatpur.

But the witnesses relied upon in support of this charge found

bullet hit dead bodies of five victims, after the gang had quitted

the sites. This fact together with hearsay evidence in relation to


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the attack proves the commission of killings and participation of

accused persons therewith.

285. The learned prosecutor further submits that hearsay

evidence can be acted upon if it gets corroboration from other

evidence. P.W.06 is the wife of one victim who had occasion of

watching the attack and killing her husband Lal Mia. In absence

of anything contrary, it is proved that no other group but the

group formed of Pakistani occupation army and the four accused

persons, engaged in carrying out attack at village-Nandina had

carried out the next attack, to further its designed criminal

mission. Defence could not refute what has been divulged from

evidence of witnesses.

286. On contrary, Mr. Mohammad Abul Hassan the learned

state defence counsel submits that hearsay evidence of witnesses

relied upon does not connect the accused persons with the event

arraigned; that none of hearsay witnesses testified implicating the

accused persons; that testimony of alleged direct witness P.W.06

remained uncorroborated and her testimony does not speak of the

total attack allegedly launched at village-Doulatpur. Non

initiation of any case over the event of killing creates doubt as to

complicity of the accused persons with the event alleged and that

the P.W.06 had no reason of recognizing the accused persons and


114

thus her testimony carries no value and credence, the learned

state defence counsel added.

287. The event of attack which resulted in killing civilians of

villages-Molla para and Doulatpur indisputably was recurrence

of the attack arraigned in charge no.02. Already it has been

found proved that the four accused persons accompanied the

Pakistani occupation army in carrying out attack at village-

Nandina that resulted in killing numerous unarmed civilians. The

event arraigned in this charge no.03 happened just after the gang

had completed its mission at village-Nandina, on the same day.

Thus, presumably the same gang accompanied by the accused

persons had deliberately carried out the diabolical killing of

defenceless civilians, as arraigned in this charge no.03.

288. Tribunal notes that all the witnesses excepting P.W.06 heard

the event of killing a number of numerous civilians at villages-

Molla Para and Doulatpur. The event of killing as it transpires

was conducted on the same day i.e. on 18th October 1971after the

criminal mission ended at village-Nandina, as arraigned in

charge no.02.


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289. Tribunal notes that even anonymous hearsay evidence is not

inadmissible per se, if it is found to carry probative value. The

event of killing a number of civilians of Molla para and

Doulatpur remained unimpeached. Defence simply denied it. It

however could not controvert the event of killing accomplished.

290. First, let us apprise what the P.W.06 Somela Khatun a vital

witness testified in relation to this charge. She is the sole direct

witness to the attack arraigned in this charge. She is the wife of

one victim Lal Mia. Her ocular testimony demonstrates that she

watched how the aggressors annihilated her husband. It is

evinced that she had been at her conjugal home when a group

formed of Pakistani occupation army, Razakars accompanied by

Razakars and collaborators Jabbar Mondol, Jachhijar Rahman

Khoka, Wahed Mondol and Montaj Ali Bepari attacked their

house.

291. What happened next? Evidence of P.W.06 depicts that she

saw the Razakars [accused persons] handing over her husband

Lal Mia to Pakistani occupation army, on forcible capture when

they taking him to an open space beside the home gunned him

down to death. She [P.W.06] later on, on the same day heard that

many other civilians of villages-Doulatpur, Nandina and Molla

para were annihilated and numerous houses were set ablaze. All


116

these facts crucially related to the event of attack remained

unimpeached. Defence simply denied presence of accused

persons with the gang and their alleged participation with the

commission of crimes.

292. The accused persons were from their [P.W.06]

neighbouring locality and thus she knew them beforehand. It is

found to have been affirmed in cross-examination as P.W.06

stated in reply to defence question put to her during cross-

examination that their house and the house of accused Jabbar

Mondol were intervened by 5-7 houses.

293. It appears that P.W.02 came to know that the aggressors

Razakars Md. Abdul Jabbar Mondol, Md. Jachhijar Rahman

alias Khoka , Md. Abdul Wahed Mondol and Md. Montaz Ali

Bepari alias Momtaj and Pakistani army men shot down non

combatant civilians namely Lal Mia Bepari, Abdul Baki,

Khalilur Rahman, Dula Miah, Mahesh Chandra Mondol of

village Doulatpur to death.

294. Hearsay evidence of P.W.03, P.W.04 and P.W.05 also

demonstrates that Lal Mia Bepari, Abdul Baki, Khalilur Rahman,

Dula Miah, and Mahesh Chandra Mondol of village- Doulatpur

were killed in course of the attack. Their hearsay testimony


117

seems to be natural. They have made no amount of exaggeration.

All these witnesses were residents of village-Nandina. They

heard the event on the day they experienced the attack at their

village [as arraigned in charge no.02]. Their hearsay testimony

gains strong corroboration from the ocular testimony of P.W.06,

the sole direct witness to part of the attack. Thus, the hearsay

evidence of the above witnesses cannot be kept aside from

consideration.

295. It transpires too from corroborative evidence of P.W.07 and

P.W.08 that they moved to village- Doulatpur, after the gang had

left the sites and they spotted the dead bodies of Lal Miah and

Mahesh Chandra at the house of Lal Miah and they also saw

bullet hit dead bodies of other victims namely Dula Mia,

Khalilur Rahman and Abdul Baki lying at their own house. This

post attack fact of finding bullet hit dead bodies lying at the sites

indisputably proves that the killing of civilians happened

pursuant to attack.

296. Now, the question comes forward who or which gang

committed the event of killings? P.W.07 and P.W.08 did not see

the event of killing the civilians as arraigned in this charge. But

what they testified seems to be closely linked to the event of

attack that ended in annihilation of a number of defenceless


118

civilians. Additionally, P.W.06 a direct witness watched the

killing of her husband Lal Mia accomplished on active

participation of the four accused.

297. We got it proved that on active assistance of the accused

persons victim Lal Mia was forcibly captured from his house and

was handed over to the Pakistani occupation army. In this way

the accused persons, knowing consequence substantially

contributed, aided and encouraged the commission of the killing.

We may safely presume that the accused persons had acted in

similar way even in annihilating the other civilians, being part of

the enterprise.

298. The event of attack which resulted in killing civilians as

arraigned in this charge indisputably was recurrence of the attack

arraigned in charge no.02. Already it has been found proved that

the four accused persons accompanied the Pakistani occupation

army in carrying out attack at village-Nandina that resulted in

killing numerous unarmed civilians.

299. The event arraigned in this charge no. 03 happened just

after the gang had completed its mission at village-Nandina, on

the same day. Thus, in absence of anything contrary we are

inclined to conclude, taking the facts divulged into account that


119

the same gang accompanied by the four accused persons had

deliberately carried out the diabolical killing of defenceless

civilians.

300. Already it has been proved that the four accused persons,

being part of the criminal enterprise participated and committed

the killing as arraigned in charge no.02. Six witnesses relied

upon narrated the preceding event of attack conducted at village-

Nandina, as direct witnesses and they testified too what they

heard about the attack at Doulatpur, as arraigned in this charge

no.03.

301. It stands proved, on rational appraisal of evidence presented

that five unarmed civilians were annihilated at village Doulatpur,

in continuation of the attack arraigned in charge no.02 and that

the four accused persons participated in carrying out this phase

of attack at village Doulatpur, with same intention.

302. We have got it proved that the preceding attack at village-

Nandina was aimed to capture and annihilate the freedom

fighters who got sheltered there. But the gang did not find them

there and then aggressively conducted killing of civilians.

Presumably, next the same gang opted to carry out attack at

village-Doulatpur for hunting the freedom-fighters and


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eventually being imbued by extreme aggression it being actively

assisted by the accused persons deliberately carried out killing

five civilians, we conclude irresistibly.

303. Since the event of accomplishing killing at village-

Doulatpur was indisputably chained and recurrent to the

preceding event occurred at village-Nandina, we are forced to

conclude that the same criminal enterprise formed of Pakistani

occupation army accompanied by four accused had carried out

this attack and the accused persons substantially contributed and

participated in perpetrating the killings which were recurrence of

the preceding event of attack.

304. Tribunal further notes that without effective assistance of

local collaborators it would not be possible for the Pakistani

occupation army to locate the locality and select the target of

killing. All these circumstances cumulatively lead to conclude

that the four accused, the infamous loyalists of the Pakistani

occupation army stationed in Gaibandha who participated in

committing the killing by launching attack at Nandina [as

arraigned in charge no.02], being part of the enterprise formed of

Pakistani occupation army were also engaged in effecting the

killings at Doulatpur, by launching recurrent systematic attack,

as arraigned in this charge no.03.


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305. It has been argued on part of the defence that prosecution

could not bring evidence as to the event of alleged killing of all

the victims and participation and complicity of the accused

persons therewith.

306. We are not agreed with the above argument. Horrific

situation existing in context of recurrent systematic attack the

people of the locality assailed naturally had no opportunity of

seeing all the aspects of the attack. In the case in hand, ocular

testimony of P.W.06 the wife of one victim Lal Mia together

with hearsay evidence of other witnesses collectively proves the

event of killing numerous civilians. Prosecution is not required to

prove the manner of materializing killing of each victim by

adducing direct evidence. It is to be concluded based on facts and

circumstances divulged.

307. It has been revealed patently that just after ending the

criminal mission at village-Nandina [as arraigned in charge

no.02] the group had left the site and afterward the P.W.08

discovered dead bodies of numerous civilians at Molla para and

Doulatpur, few hours later and on the same day. It gets

corroboration from evidence of P.W.07 who too found bullet hit

dead bodies of victims lying at the crime scenes. It thus proves,

in absence of anything contrary that the same gang accompanied


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by the four accused persons had carried out the recurrent

mayhem which resulted in brutal annihilation of civilians at

Molla Para and Doulatpur as well.

308. The learned state defence counsel submits that admittedly

no accusation was initiated over the alleged event, after it

happened and thus now testimony on the event alleged suffers

from doubt.

309. We are not with the above submission. Mere non

prosecution instantly after the event happened or delay in

prosecuting the crimes does not ipso facto makes it doubtful. In

this regard Tribunal reiterates that criminal prosecutions are

always open and not barred by time limitation. Mere delayed

prosecution by itself does not taint the evidence tendered.

310. Besides, neither the Genocide Convention of 1948, nor the

Geneva Conventions of 1949 contain any provisions on statutory

limitations to war crimes and crimes against humanity.

Additionally, the offence of crimes against humanity never gets

old and that the perpetrators will face justice. We should not

forget it that the victims who deserve that their tormenters are

held accountable. The passage of time does not diminish the

guilt.


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311. The offence of killing unarmed civilians was the upshot of a

designed ‘systematic attack’ launched directing non-combatant

civilians, in violation of international humanitarian law and the

laws of war. The victims were protected civilians and not the

counter part of the organised gang of attackers. It is immaterial to

show that a large number of civilians were killed, to constitute

the offence of crimes against humanity.

312. It is now well settled that even killing a limited number of

civilians constitutes the offence of crimes against humanity, if it

happens pursuant to systematic attack directing unarmed

civilians. In this regard we recall the observation of ICTR

Appeal Chamber made in the case of Nahimana, Barayagwiza

and Ngeze which is as below:

“The Appeals Chamber considers that, except

for extermination, a crime need not be carried

out against a multiplicity of victims in order

to constitute a crime against humanity. Thus

an act directed against a limited number of

victims, or even against a single victim, can

constitute a crime against humanity, provided

it forms part of a widespread or systematic

attack against a civilian population.”

[Nahimana, Barayagwiza and Ngeze, ICTR Appeals Chamber, Judgment November 28, 2007, para. 924]


124

313. Tribunal retells that liability concerning the offences

enumerated in section 3(2) of the Act of 1973 under the doctrine

of JCE [Basic Form] need not involve the physical commission

of crimes by all the members of the JCE. Thus, it is immaterial to

show with specificity as to how the accused persons being the

members of the enterprise had acted, to further the agreed object

of the criminal mission. Legal proposition evolved in this regard

in the ICTY may be cited here as relevant which is as below:

“If the agreed crime is committed by one or

other of the participants in a joint criminal

enterprise such as has already been discussed,

all the participants in that enterprise are

equally guilty of the crime regardless of the

part played by each in its commission.”

[Vasiljevic, ICTY Trial Chamber,

Judgment: November 29, 2002, para 67]

314. In view of facts unfolded in evidence presented we assume

justifiably that the accused (1) Md. Abdul Jabbar Mondol , (2)

Md. Jachhijar Rahman @ Khoka , (3) Md. Abdul Wahed Mondol

and (4) Md. Montaz Ali Bepari @ Momtaj, the notorious

loyalists of Pakistani occupation army did not keep them

distanced even in conducting atrocities at village-Doulatpur.

They continued staying with the gang intending to assist and

facilitate the goal of the criminal mission and they did it in


125

agreement of a designed plan pursuant to which the preceding

attack was conducted at village-Nandina [as arraigned in charge

no.02].

315. Besides, the explicit aggressive act of accused persons

forming part of attack substantially contributed to the killing of

one victim Lal Mia. It stands proved from ocular testimony of

P.W.06, the ill-fated wife of the victim. It may be reasonably

inferred too from this fact that the accused persons actively

assisted, aided, abetted and encouraged the principals forming

the gang in perpetrating the killing of other victims, confining

them unlawfully as well, by launching attack at Doulatpur under

Sahapara Union, Police station- Gaibandha Sadar of

District[now]-Gaibandha.

316. From the facts and circumstances unveiled it has been found

well proved that the accused persons had conscious ‘concern’

and ‘participation’ to the commission of the deliberate killing of

civilians at village-Doulatpur, as co-perpetrators. Therefore, they

incurred liability under section 4(1) of the Act of 1973 which

refers to the doctrine of JCE [Form-I].

317. In the end, we find evidential basis to conclude that the

accused persons and Pakistani occupation army men forming a


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criminal syndicate had deliberately acted together to further a

common criminal purpose and thus the killing of five civilians at

village-Doulatpur entails the criminal liability of all the members

of the group to which the accused persons were active and

conscious part. Therefore, the accused persons are equally guilty,

as co-perpetrators under the propounded doctrine of JCE [Form-

I].

318. On cumulative evaluation of evidence presented before us, we

conclude that it has been proved beyond reasonable doubt that the

accused (1) Md. Abdul Jabbar Mondol , (2) Md. Jachhijar

Rahman @ Khoka , (3) Md. Abdul Wahed Mondol and (4) Md.

Montaz Ali Bepari @ Momtaj by their act and conduct forming

part of systematic attack participated, abetted and substantially

contributed to the accomplishment of killing 05 civilians , on

unlawful capture constituting the offences of ‘confinement’ and

‘murder’ as crimes against humanity as enumerated in section

3(2)(a)(g)(h) of the Act of 1973 which is punishable under section

20(2) read with section 3(1) of the Act and thus the accused persons

incurred liability under section 4(1) of the Act for the above offences.

Adjudication of Charge No. 04: [05 accused indicted] [Offences of ‘Abduction’; ‘Confinement’; ‘Torture’ and ‘murder’ of seven non-combatant freedom-fighters ] 319. Charge: That on 18 October 1971, at about 12.00 Noon to

5.00 P.M. the accused (1) Md. Abdul Jabbar Mondol


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(absconded), (2) Md. Jachhijar Rahman alias Khoka


Md. Montaz Ali Bepari alias Momtaj (absconded) and (5) Md.

Ranju Miah by launching systematic attack at villages Nandina

and Doulatpur forcibly captured non-combatant freedom-fighter

Abul Kashem who was hiding at the place adjacent to Nandina

Government primary school. Detained victim was subjected to

inhuman torture, by hanging him on a tree in front of the said

school and he was forced to drink urine when the detained victim

wanted to drink water.

Thereafter, the accused persons took away the detained victim

Abul Kashem to Pakistani occupation army men when he was

shot to death and his dead body was left abandoned by the side

of Bhabanipur road and afterward the villagers buried his dead

body there. In conjunction with the event of attack, the accused

persons also killed six more non-combatant freedom fighters as

named in the formal charge, on forcible capture.



Abdul Wahed Mondol (absconded), (4) Md. Montaz Ali Bepari

alias Momtaj (absconded) and (5) Md. Ranju Miah have been


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charged for participating, abetting, facilitating, contributing and

also for complicity in the commission of offences of

‘abduction’; ‘confinement’; ‘torture’; and ‘murder’ as crimes

against humanity as enumerated in section 3(2)(a)(g)(h) read

with section 4(1) of the International Crimes (Tribunals) Act,

1973 which are punishable under section 20(2) of the Act.


320. This charge rests upon testimony of six witnesses. Of them

some had occasion of seeing the acts carried in accomplishing

the alleged killing, happened in phases, in conjunction with the

attack which continued for couple of hours. Some have testified

what they learnt about the killing of other freedom-fighters.

Before we weigh the evidence presented let us eye on what the

witnesses narrated in Tribunal.


village-Nandina under police station-Gaibandha Sadar of District

Gaibandha. In 1971 he was a student of class IX. He chiefly

testified the event of attack arraigned in charge no.02, as a direct

witness. Additionally, he also testified the event arraigned in this

charge no.04.


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322. P.W.02 stated that on the same day [18 October 1971] at

about 12:00 P.M Razakars Md. Abdul Jabbar Mondol, Md.

Jachhijar Rahman alias Khoka, Md. Abdul Wahed Mondol, Md.

Montaz Ali Bepari alias Momtaj ,Asgar Ali Khan[now dead] and

Md. Ranju Miah forcibly captured a freedom-fighter namely

Abul Kashem from betel leaf garden and tied him up with a

banyan tree in front of Nandina school and informed the

Pakistani occupation army who then came there and taking

detained Abul Kashem beside the road where they shot him to

death. P.W.02 also stated that Razakars he named were from

their village and thus he knew them beforehand.

323. P.W.02 denied the defence suggestions put to him that

freedom-fighter Abul Kashem died in front battle with Pakistani

army; that the accused persons were not Razakars; that they were

not at the crime site; that they were not involved in the event he

testified and that what he testified implicating the accused

persons was untrue.

324. P.W. 04 Sonabi [75] is a resident of village- Nandina under

police station- Gaibandha Sadar of District Gaibandha. She is the

wife of one of victims of the event arraigned in charge no.02. In

respect of the event arraigned in this charge no.04 that happened

on the same day she is a hearsay witness.


130

325. P.W.04 stated that later on, on the same day [on 18 October

1971,] she learnt that few freedom fighters including Abul

Kashem were gunned down to death by the Razakars she named

[ Razakars Jabbar Mondol, Jachhijar Rahman @ Khoka, Abdul

Wahed Mondol, Montaj Ali Bepari] and Pakistani army .

326. In narrating the event arraigned in charge no.02 P.W.04

does not state that accused Ranju Mia was with the gang.

Additionally, she did not hear that accused Ranju Mia was with

the gang of attackers in accomplishing killing freedom-fighters

including Abul Kashem.

327. P.W. 07 Md. Abdul Latif Akondo [63] is a resident of


Sadar of District Gaibandha. He is a near relative of victims of

the event arraigned in charge no.02. He testified what he

witnessed, in relation to that charge, as a direct witness.

Additionally he as a hearsay witness testified the event of attack

arraigned in this charge no.04 which relates to killing of number

of unarmed freedom-fighters including freedom-fighter Abul

Kashem.

328. P.W.07 stated that next [ on 18 October 1971] he returned

back home and on the same day at about 12:30 P.M he heard


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from the locals that Razakars Jachhijar Rahman and Abdul

Wahed Mondol forcibly capture freedom-fighter Abul Kashem,

tied him up with a tree in front of Nandina primary school and

inflicted torture. Then their cohort Razakar Montaj informed it to

Tulshighat Razakar camp when Pakistani occupation army

coming to the primary school took away detained Abul Kashem

toward Gaibandha by a vehicle and on the way at the place

Bhabanipur detained Abul Kashem was shot to death.

329. P.W.07 also stated that on the same day [on 18 October

1971 at about 05:00 P.M. Razakar Abdus Samad [now dead]

and Razakar Ranju Mia gunned down two detained freedom

fighters to death. Later on, he also knew that those Razakars also

killed four [04] detained freedom-fighters by gun shots at

different places.


Nandina under police station-Gaibandha Sadar of District

Gaibandha. In addition to testify what he watched in conjunction

with the attack arraigned in charge no.02 P.W.08 also testified

what he witnessed in relation to causing torture to freedom-

fighter Abul Kashem on forcible capture, carried out on the same

day.


132

331. P.W.08 , in respect of the event arraigned in this charge

stated that on the same day [18 October 1971] at around 12:00

P.M Razakar Abdul Wahed Mondol and Razakar Jachhijar

Rahman unlawfully detained unarmed freedom-fighter Abul

Kashem and tortured him in front of Nandina Primary School,

tying him up with a banyan tree. He [P.W.08] and many villagers

witnessed it standing in the field of the school. Next, Razakar

Montaz informed Pakistani army at Tulshi Ghat Razakar camp

and then the army men came at Nandina primary school when

the detained Abul Kashem was handed over to them.

332. P.W.08 also stated that later on he heard that on the way to

Gaibandha at Bhabanipur the detainee freedom-fighter was shot

to death and his dead body left abandoned by the side of

Bhabanipur road. It remained uncontroverted. P.W.08 also stated

that on the same day he heard that the Razakars he named [

Abdul Jabbar Mondol, Abdul Wahed Mondol, Razakar Jachhijar

Rahman@ Khoka and Montaz] and Razakar Ranju Mia gunned

down six[06] unarmed freedom-fighters to death detaining them

from different places.

333. In cross-examination, P.W.08 stated in reply to defence

question put to him that he heard from his elder brother, uncle

and villagers that the Razakars he named killed 06 freedom-


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fighters; that the house of accused Jabbar Mondol was about 100

yards far from that of their own and that accused Ranju Mia was

a resident of village-Chok Goyashpur, about 3-4 miles far from

their village.

334. P.W. 09 Md. Abdul Karim [72] is a resident of village-

Chok Goyashpur under police station- Gaibandha Sadar of

District Gaibandha. In 1971 he was 23/24 years old. In addition

to one phase of attack he allegedly witnessed, P.W.09 narrated

when the freedom-fighters arrived at their locality.

335. P.W.09 stated that on 18.10.1971, in early morning after the

Fazar prayer, he went to their land to work when he saw 80/90

freedom fighters coming from the end of village-Nandina. Then

the freedom-fighters approached toward Gaibandha-Sadullapur

road and eventually to north direction as he himself [P.W.09] and

others guided them the way to hide.

336. P.W.09 also stated that at around 03:00 P.M. he came back

home and heard the sound of gun firing. With this he went into

hiding inside the bamboo bush wherefrom he saw 03 freedom-

fighters were running towards their[P.W.09] home , on being

chased by Razakar Ranju Miah and his brother Razakar Abdus

Samad[now dead] with gun firing . After some time, when those


134

three freedom-fighters came near the bamboo garden, he made

them out sight by keeping them in the house of Rahim Box [now

dead].

337. P.W. 09 further stated that those Razakars kept looking for

the 03 freedom-fighters. Razakar Samad [now dead] asked him

where he made them sheltered. He [P.W.09] expressed ignorance

about the whereabouts of them. Then Razakar Abdus Samad hit

him [P.W.09] on his lower abdomen with rifle. Consequently he

got fainted. On that day he [P.W.09] was admitted in Gaibandha

Hospital and gained his consciousness after a day.

338. P.W.09 next stated that after 6/7 days’ treatment he came

back home and heard that those Razakars found the freedom-

fighters who took shelter at Rahim Box’s house and instantly

fired gunshot to them which resulted in death of two and one

freedom-fighter got seriously injured who was handed over to

Pakistani army. He also heard that the villagers buried the dead

bodies of those two freedom-fighters in the bamboo garden

where now a commemorative plaque has been built. Finally,

P.W. 09 stated that accused Razakars were his neighbours and

thus he knew them beforehand.


135


stated that those freedom fighters were not carrying any gun with

them. Defence suggested P.W.09 that the accused were not

Razakars; that he did not know them; that they were not engaged

with the alleged event; that he did not hear the event he testified

and that what he testified was untrue. P.W.09 denied all these

suggestions blatantly.

340. P.W. 10 Md. Khaza Mia @ Shaza Mia [56] is a resident of

village- Chok Goyashpur under police station- Gaibandha Sadar

of District Gaibandha. In 1971 he was 09 years old and a student

of class III. In addition to facts related to the attack he stated how

and when the freedom-fighters arrived at their locality.

341. P.W.10 stated that on 18.10.1971 in the early morning he

and his cousin brother went out for grazing the cow in the grass

field when they saw 80/90 freedom fighters coming from the end

of village-Nandina ; that his[P.W.10] cousin brother helped

them in moving toward north crossing Gaibandha- Sadullapur

road.

342. P.W.10 further stated that at around 03:00 P.M on the same

day, he heard the sound of gun firing and one shot went away

just above his head. With this he went into hiding inside a


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bamboo bush wherefrom he saw 03 freedom-fighters running

towards their home, on being chased by two Razakars. His

[P.W.10] cousin brother Abdul Karim [P.W.09] made them

hidden in the house of Rahim Box.

343. P.W. 10 next stated that after some time Razakar Md. Ranju

Mia and his brother Razakar Samad [now dead] asked his cousin

brother Abdul Karim where the freedom-fighters got sheltered

them. But Abdul Karim expressed his ignorance about it when

Razakar Abdus Samad [now dead] hit him [Abdul Karim] on his

lower abdomen by rifle. Consequently his cousin brother got

fainted.

344. P.W.10 also stated that those Razakars finding the freedom-

fighters who got sheltered at Rahim Box’s house fired gun shot

that resulted in death of two and one got seriously injured who

was handed over to Pakistani army. The villagers later on buried

the dead bodies of those two freedom-fighters in the bamboo

garden where now a memorial plaque has been built. Finally,

P.W. 10 stated that accused Razakars were his neighbors and

thus he knew them beforehand.


137


stated that the freedom-fighters were not carrying any fire-arm

with them. P.W.10 denied the defence suggestions put to him

that the accused were not Razakars; that he did not know them;

that they were not engaged with the alleged event; that he did not

see or hear the event he testified and that what he testified was

untrue.


346. Mr. Mokhlesur Rahman Badal, the learned prosecutor

submits that the attack arraigned in this charge was continuation

of two other prior events of attack conducted on the same day as

arraigned in charge nos.02 and 03; that the target of attackers

was the freedom-fighters; that the accused persons deliberately

participated in perpetrating the brutal killing of seven unarmed

freedom-fighters which has been proved beyond reasonable

doubt. Defence could not impeach the evidence presented in this

regard.

347. It has been further argued that defence merely denied the

participation and complicity of accused persons which is not

sufficient at all to refute the narrative recounted by natural and

competent witnesses. The event of attack continued for couple of

hours and the accused persons participated in annihilating non-


138

combatant freedom-fighters on forcible capture, at different sites,

in conjunction with the attack which has been well proved from

facts and circumstances unveiled from evidence of witnesses, the

learned prosecutor added.

348. Mr. Mohammad Abul Hassan the learned defence counsel

submits that the witnesses who allegedly watched the part of

attack are not reliable and at the relevant time particularly

P.W.10 was a minor boy of 09 years old and thus it was not

practicable of seeing the event as he testified. There has been no

evidence to show that either of five accused physically

participated in committing the alleged killings. Evidence of

witnesses suffers from inconsistencies and prosecution failed to

prove participation and complicity of the accused persons with

the event alleged. Hearsay evidence of some of witnesses does

not seem to have been corroborated by other evidence and

accordingly arraignment brought against the accused persons

could not be proved by any credible evidence.

349. At the outset, we disagree with defence argument that in

absence of any proof as to physical participation of any of five

accused with any of killings none of them can be held

responsible. We are to see first the commission of the killing a

number of unarmed freedom-fighters took place pursuant to


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recurrent attacks chiefly directing the freedom-fighters, as

arraigned in this charge.

350. Next, we are to see whether the accused had ‘concern’ and

‘common agreement’ with the attack, in any manner. It is to be

noted that act of an individual amid or after or prior to the event

forms part of attack if it is found to have had substantial effect to

the commission of crime, pursuant to the attack. Keeping this

jurisprudential proposition in mind we require weighing the

evidence adduced, in support of this charge.

351. This charge relates to killing seven [07] unarmed freedom-

fighters committed on 18.10.1971, in continuation of attacks

arraigned in charge nos. 02 and 03. All the five accused have

been indicted in this charge. According to the charge framed the

killing was carried out at different sites. Thus, naturally the

witnesses did not have fair opportunity of seeing and hearing all

the aspects of the attack carried out.

352. This charge rests upon testimony of six[06] witnesses of

whom P.W.04 and P.W.07 are hearsay witnesses and P.W.02,

P.W.08, P.W.09 and P.W.10 are direct witnesses to facts

materially tied to the attack including the killing of unarmed


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freedom-fighter Abul Kashem and 03 other unarmed freedom-

fighters.

353. It transpires that in relation to killing unarmed freedom-

fighter Abul Kashem P.W.02 a resident of village Nandina

testified that all the five accused and Razakar Asgar Ali Khan

[now dead] forcibly captured Abul Kashem from a betel garden,

brought him in front of Nandina school, caused torture tying him

up with a banyan tree and then handed him over to Pakistani

occupation army who gunned him down to death, taking him

beside the road.

354. It stands proved that the victim was unlawfully captured

from a place where he remained in hiding. Presumably the victim

was unarmed at that time. The accused persons physically

participated in effecting his forcible capture, as testified by the

P.W.02. It has also been divulged that all the five accused

persons substantially contributed, facilitated, aided and abetted

the commission of the killing, the principal crime. Defence could

not refute the act of killing as recounted by the P.W.02.

355. P.W.02 knew the accused persons beforehand as they were

from their village. In cross-examination P.W.02 stated that

accused Ranju Mia was a resident of village-Chok Goyashpur


141

and he was the son of Abbas Ali. Thus, it is believable that

P.W.02 had reason of recognizing the accused persons including

the accused Md. Ranju Mia when they carried out criminal acts

forming part of attack. Besides, defence could not impeach the

fact of killing unarmed freedom-fighter Abul Kashem, on

forcible capture.

356. The event of killing Abul Kashem, a non-combatant

freedom-fighter forming part of the entire attack gains

corroboration from evidence of P.W.08, a direct witness who

along with some others saw the accused Wahed Mondol,

Jachhijar Mondol causing torture to detained Abul Kashem tying

him up with a banyan tree at Nandina primary school. Testimony

of P.W.08 demonstrates too that accused Montaj Ali also was

with those accused Razakars. Defence could not impeach this

crucial version in any manner.

357. P.W.08 does not state that accused Abdul Jabbar Mondol

and Ranju Mia too remained at the site when the detained Abul

Kashem was subjected to torture, true. But such mere omission

does not ipso facto diminish the core of the narrative made by

P.W.08 and it does not create any doubt as to participation of all

the accused persons with this phase of the event that resulted in

horrendous killing of Abul Kashem.


142

358. Tribunal notes that with the lapse of long passage of time

witnesses who had occasion of watching a particular fact full of

grave violence may not be always able to recount what they

experienced with exact and detail accuracy.

359. Tribunal notes that in a case involving the offences of

crimes against humanity corroboration is not a requirement of

law. Testimony of even a single witness shall suffice to prove the

arraignment, if it inspires credence. Even hearsay evidence, if it

is found to have probative value, can be safely acted upon in

arriving at decision on factual aspect.

360. In the case in hand, it transpires that unimpeached ocular

testimony of P.W.02 and P.W.08 cumulatively proves the fact of

brutal and deliberate killing of Abul Kashem a non-combatant

freedom-fighter in accomplishing which conscious and active

participation of the accused persons some of whom belonged to

Razakar Bahini and some used to maintain nexus with the

Razakar Bahini and Pakistani occupation army.

361. It has been divulged too that P.W.04 and P.W.07 heard the

phase of attack that resulted in killing Abul Kashem. Hearsay

evidence of these two witnesses gains strong corroboration from

ocular testimony of P.W.02 and P.W.08. Hearsay version the


143

P.W.04 and P.W.07 made does not demonstrate detail precision

of the killing, true. Since they are not firsthand witness naturally

they did not have opportunity of learning the event in detail. But

what they have testified inspires credence and they have not

made any exaggeration, we conclude.

362. How the killing of 06 other freedom-fighters happened and

when? The charge framed arraigns that the attack that resulted in

barbaric annihilation continued for couple of hours which ended

at 06:00 P.M. The witnesses who came on dock to testify

naturally did not have opportunity of watching all the killings,

carried out at different sites, in conjunction with the attack.

Presumably, the gang being divided into groups had carried out

attack intending to wipe out the unarmed freedom-fighters, on

unlawful capture.

363. It appears that P.W.09 and P.W.10 are direct witnesses to

facts crucially related to the attack directing 03 unarmed

freedom-fighters. This phase of violent event happened at 03:00

P.M. on the same day, P.W.09 testified. His testimony

demonstrates too that he and villagers helped 80/90 freedom-

fighters in moving back toward north crossing Gaibandha-

Sadullapur road, after Fazar prayer [on the day of the event].


144

364. The above piece of version remained unshaken. This

unimpeached fact leads to the unerring inference that presence of

freedom-fighters around the localities got leaked and then the

accused persons some of whom were Razakars, their cohorts and

Pakistani occupation army started launching attack at the

localities of village-Nandina and Doulatpur. Such attack was

pursuant to collective criminal mission.

365. We have already found it proved that two preceding

designed attacks as arraigned in charge nos. 02 and 03 were

conducted to further plan of annihilation of freedom-fighters.

366. Now, what happened next to moving back of freedom-

fighters toward north as testified by P.W.09? Testimony of

P.W.09 demonstrates that on the same day at 03:00 P.M. he

heard gun firing and with this he went into hiding inside a

bamboo bush of their house wherefrom he saw accused Ranju

Mia and his brother Razakar Abdus Samad [now dead] chasing

three freedom-fighters and he made them hidden inside the house

of their neighbour Rahim Box when they came near the bamboo

bush. Defence simply denied it in cross-examination but it could

not refute this crucial fact in any manner.


145

367. The above unimpeached version proves that those three

freedom-fighters were non-combatant and that is why could not

resist the aggressors chasing them and compelled to go into

hiding with the help of P.W.09. Thus, it stands proved that at the

relevant time the victims had the status of protected civilians, not

the status of combatant and thus they naturally attempted to

escape.

368. It transpires that the aggressors did not stop to go on with

their violent activities even after the non-combatant freedom-

fighters got sheltered at the house of Rahim Box. Ocular

testimony of P.W.09 depicts that the aggressors i.e. accused

Ranju Mia and his brother notorious Razakar Abdus Samad [now

dead] started searching those three freedom-fighters who were

being chased by them and at a stage on being scolded he

[P.W.09] expressed ignorance about the location of those

freedom-fighters when Samad Razakar inflicted severe rifle blow

on his [P.W.09] abdomen and with this he fell down and became

unconscious

369. P.W.09 could not see what happened next as he became

unconscious and was admitted in Gaibandha hospital. It depicts

from testimony of P.W.09 that on returning back home, 6-7 days

later, he [P.W.09] heard that Razakar Abdus Samad [now dead]


146

and his brother accused Razakar Ranju Mia fired gunshot

directing those three freedom-fighters who remained in hiding

inside the house of Rahim Box and such gun firing resulted in

death of two and one injured freedom-fighter was handed over to

Pakistani occupation army.

370. The above pertinent fact relating to such killing of freedom-

fighters leads to conclude that intention of chasing these three

victims with fire arms was to annihilate them. The fact of killing

those unarmed freedom-fighters seems to have been affirmed in

cross-examination as P.W.09 categorically stated in reply to

defence question that the three freedom-fighters were non-

combatant when they approached at their house and that

Razakar Abdus Samad[now dead] fired gunshot which resulted

in instant death of two and causing bullet hit injury to one.

371. Defence does not appear to have made any effort to

controvert what the P.W.09 testified in relation to criminal acts

conducted by accused Md. Ranju Mia and his brother Samad

Razakar [now dead]. Participation in chasing the victims and

presence at the scene when the killing was accomplished is

sufficient to infer that the accused Md. Ranju Mia, sharing

common intent consciously accompanied his brother, as a co-

perpetrator.


147

372. It has not been denied that two freedom-fighters killed, in

conjunction with the attack were buried at the bamboo bush of

P.W.09 by villagers and now a commemorative plaque has been

built there to memorize their sacrifice. It adds assurance to the

brutal killing of those brave non-combatant freedom-fighters, by

launching attack arraigned. This killing was the upshot of one of

phases of attack conducted for couple of hours.

373. In addition to ocular testimony of P.W.09 and P.W.10 in

respect of killing unarmed freedom-fighters who being chased

went into hiding at the house of Rahim Box, P.W.07 and P.W.08,

the residents of village-Nandina also testified that they heard that

in evening, on the day the attack was carried out six [06]

unarmed freedom-fighters were gunned down to death by

accused persons and Razakar Abdus Samad [now dead], the

brother of accused Md. Ranju Mia.

374. Hearsay evidence of P.W.07 and P.W.08 in respect of

killing 06 freedom-fighters remained uncontroverted. Besides, it

gets corroboration from facts unveiled in testimony of P.W.09

and P.W.10.

375. The charge framed arraigns killing seven freedom-fighters

at different sites, in conjunction with the same attack which


148

prolonged for couple of hours. Already we have got it proved

how the killing of Abul Kashem happened and three freedom-

fighters became prey of the attackers who eventually annihilated

two of them.

376. There has been no direct evidence to show how the killing

of rest three freedom-fighters Nabir Hossain, Dr. Anwar Hossain

and Aminul Islam [as named in the formal charge] was

accomplished, true. But defence does not dispute the fact of

annihilation of these three other freedom-fighters, in addition to

killing four, as testified by P.W.09 and P.W.10. Thus, it may be

reasonably inferred that the accused persons were consciously

concerned also with the killing of the rest three [03] unarmed

freedom-fighters.

377. The learned defence counsel argued that since admittedly

the P.W.10 was only 09 years old in 1971 he did not have

practicable opportunity of seeing the event he testified and thus

the description he made implicating the accused Ranju Mia and

other accused is not credible. It is not likely to recount what the

P.W.10 allegedly experienced long more than four decades back.

378. We are not agreed with the above submission. Tribunal

notes that mere tender age of a witness does not make his or her


149

testimony readily unreliable, if it offers the 'core essence' of the

traumatic event. Additionally, core essence of an enormously

traumatized event retains in human memory even after lapse of

long passage of time. This view finds support from the

observation propounded by The Appellate Division of

Bangladesh Supreme Court in the case of Ali Ahsan

Muhammad Mujahid observed that –

" There is no rule requiring the Court to reject

per see the testimony of a witness who was

child at the events in question. The probative

value to be attached to testimony is

determined to its credibility and reliability".

[Criminal Appeal No. 103 of 2013, Judgment on: 16-06-2015, His Lordship Mr. Justice Hasan Foez Siddique, Page167].

379. It is found that what the P.W.10 testified in relation to the

event remained unimpeached. We find no valid reason to keep

the narrative he made aside from consideration. Thus, the

testimony of a witness who was a child at the time of the events

in question cannot be rejected per se. In rendering above

observation the Appellate Division relied upon the decision

made in the case of Gacumbitsi v. Prosecutor which runs as

below:


150

[……] It was reasonable for the Trial

Chamber to accept witness TAX’s testimony

despite her young age at the time of the

events (11 years old). The young age of the

witness at the time of the events is not itself a

sufficient reason to discount his testimony."

[Gacumbitsi v. Prosecutor, Case No.

ICTR2001-64-A Appeal Chamber, para

94]

380. Prosecution chiefly relying upon testimony of P.W.09 and

P.W.10 argued that the accused Md. Ranju Mia aided and

abetted the killing of unarmed freedom-fighters committed by

Razakar Abdus Samad and thus accused Ranju Mia incurred

liability as well.

381. Tribunal notes that in adjudicating charge no.01 it has

already been found proved that all the five accused participated

in committing the crimes arraigned. It now leads to the inference

that all the five accused including accused Md. Ranju Mia

became known to the locals for their notoriety. It is not disputed

that Razakar Abdus Samad [now dead] the brother of accused

Md. Ranju Mia was a notorious Razakar. Obviously accused Md.

Ranju Mia did not accompany his brother in accomplishing

killing the unarmed freedom-fighters as a mere spectator, we

deduce.


151

382. The mens rea of the accused need not be explicit. Indeed, as

mens rea is a state of mind, its proof is typically a matter of

inference. The standard of proof dictates, of course, that it be the

only reasonable inference from the evidence and relevant and

surrounding circumstances.

383. Abdus Samad [now dead] the brother of accused Md. Ranju

Mia was an armed Razakar -- it is not disputed. This fact rather

lends assurance as to accused Md. Ranju Mia’s presence with his

brother at the crime scene, in exercise of his affiliation in

Razakar Bahini. It may be inferred that such act of accused Md.

Ranju Mia was explicit reflection of his mens rea for abetting

and aiding and assisting his notorious brother Abdus Samad[now

dead] in accomplishing the killing of freedom-fighters, by

initiating attack. It may be justifiably deduced that he knowing

consequence and being aware of the upshot of the attack

significantly assisted and contributed in perpetrating the crimes

in question.

384. It stands proved that all the seven victims were non-

combatant freedom-fighters, at the time they faced the attack.

Defence could not refute it. The attack arraigned in this charge

was recurrence of preceding attacks, arraigned in charge nos.02

and 03.


152

385. It has already been proved that being aware of the fact of

arriving of a number of freedom-fighters at Nandina the group

formed of four accused, their cohorts and Pakistani occupation

army carried out attack first at village-Nandina [as arraigned in

charge no.02] and next on the same day at village-Doulatpur [as

arraigned in charge no.03] when the gang liquidated a number of

civilians, finding no freedom-fighter available. Facts unveiled

lead to the inference that finally on the same day the same gang

being accompanied by all the five accused started conducting

mayhem around the localities which eventually resulted in killing

seven [07] unarmed freedom-fighters.

386. It has been suggested as defence case to P.W.10 that the two

freedom-fighters [who got sheltered at the house of Rahim Box]

died and one got injured in front battle with the Pakistani

occupation army and Razakars. Presumably, by suggesting such

defence case a futile attempt has been made to show that those

freedom-fighters were combatant and had died in front battle and

thus no offence was committed.

387. But there has been neither any proof nor any indication to

make such defence case believable. Rather, it stands proved that

those freedom-fighters were non-combatant when they were

attacked by accused Md. Ranju Mia and his brother Razakar


153

Abdus Samad[now dead] and thus their brutal death was the

upshot of systematic attack directing civilians. We are to see

whether at the relevant time i.e. at the time of commission of the

crimes in question the victims were non-combatant and not their

status of freedom-fighters. If at the relevant time they were non-

combatant then they stood as protected civilians. This view finds

support from the observation of ICTR Trial Chamber made in

the case of Bisengimana which is as below:

“As noted in [the] Blaškic Judgement, ‘the

specific situation of the victim at the moment

the crimes were committed, rather than his

status, must be taken into account in

determining his standing as a civilian.’”

[Bisengimana, ICTR Trial Chamber, Judgment April 13, 2006, para. 49]

388. Proved killing of seven [07] non-combatant freedom-

fighters happened at different sites, on the same day, in

conjunction with the attack which prolonged for couple of hours.

Phases of those killing formed part of the same attack, carried

out on the same day to which all the five accused persons were

culpable and conscious part, sharing intent and thus they all

incurred liability for the commission of all the deliberate killings.


154

389. All the witnesses might not have equal opportunity of

observing all aspects of an attack which prolonged for hours

together. Pattern of attack leading to killings impels unerring

inference that the perpetrators forming groups had carried out its

criminal mission intending to materialize identical purpose i.e.

the purpose of wiping out unarmed freedom-fighters. In this way

the accused persons by their culpable act of assistance

collaborated with the gang of attackers in accomplishing its

murderous mission.

390. It has been proved that one victim Abul Kashem, a non-

combatant freedom-fighter was subjected to inhumane torment

by tying him up with a banyan tree, before causing his death by

gun shot. It constituted the offence of ‘torture’. It happened in

day time and within sight of people. Such torture was a blatant

blow to human rights. The helpless spectators too sustained

immense mental harm by observing such brutality. It was rather

a crime of terror against the pro-liberation civilian population of

the localities attacked which was indeed grave violation of

international humanitarian law.

391. It is now well settled that if the agreed crime is committed

by one or other of the participants in a joint criminal enterprise,

all the members in that enterprise are equally guilty of the crime


155

committed regardless of the part played by each in its

commission, or accomplishment. In the case in hand, it stands

proved that all the five accused (1) Md. Abdul Jabbar Mondol ,

(2) Md. Jachhijar Rahman alias Khoka , (3) Md. Abdul Wahed

Mondol , (4) Md. Montaz Ali Bepari alias Momtaj and (5) Md.

Ranju Miah in agreement of the common plan facilitated the

commission of the crime, being part of the criminal enterprise.

Such agreement or understanding to materialize the criminal

mission may be inferred from facts and circumstances. This view

finds support from the observation made by the ICTY which is

as below:

“The existence of an agreement or

understanding for the common plan,

design or purpose need not be express,

but may be inferred from all the

circumstances.”

[Tadic Appeal Judgement, para. 227; see also Krnojelac Trial Judgement, para. 80]

392. The offence of murder as a crime against humanity as

enumerated in the Act of 1973 does not require the Prosecution to

establish that the accused personally committed the act of killing.

Personal commission is merely one of the modes of

responsibility. An accused can also be found guilty of a crime

enumerated in the Act of 1973 on the basis of his act and conduct


156

constituting the act of approval, encouragement and abetment

that substantially facilitated the commission of crime.

393. Commission of offence can be done not only by physical

participation. It may also be done otherwise, directly or

indirectly, by positive acts, whether individually or jointly with

others. In this regard it has been observed by the ICTY Trial

Chamber in the case of Stakic, that--

A crime can be committed individually or

jointly with others, that is, there can be

several perpetrators in relation to the same

crime where the conduct of each one of them

fulfils the requisite elements of the definition

of the substantive offence.

[Stakic, ICTY Trial Chamber, July 31, 2003, para. 528]

394. We reiterate that in 1971 the Pakistani occupation army was not

at all familiar with the communications and locations of villages or

the information as to where a particular group of civilians used to

reside or who were to be targeted for annihilation. The local Razakars

and collaborators used to accompany the Pakistani army stationed

around the localities and thereby substantially urged and facilitated

them to perpetrate the attack targeting the pro-liberation non

combatant civilians. In the case in hand too, the accused persons

knowingly participated to the commission of crimes by accompanying


157

the Pakistani occupation army, in achieving goal of the criminal

mission.

395. In the case in hand, it stands proved that the contribution of

the accused persons, in conjunction with the attack pursuant to

the common purpose of the criminal gang substantially

impacted to the commission of the principal crime, the killing.

Conscious and barbaric participation of accused persons, by their

explicit approval, encouragement, abetment and substantial

contribution in committing the annihilation of a number of

freedom-fighters made them criminally liable.

396. It has been found well proved that the accused persons not

only aided and abetted , by their act and conduct which had

substantial effect upon the perpetration of the barbaric and

indiscriminate killing of seven unarmed freedom-fighters but

they, sharing common intent had acted as co-perpetrators, being

part of the criminal enterprise. In this regard it has been

propounded by the ICTR in the case of Mpambara that—

“A person who contributes substantially to

the commission of a crime by another person,

and who shares the intent of that other person,

is criminally liable both as a co-perpetrator

and as an aider and abettor.”


158

[Mpambara, ICTR Trial Chamber, Judgment September 11, 2006, para 17]

397. On rational and integrated evaluation of evidence provided

on part of prosecution it has been found proved beyond

reasonable doubt that all the five accused (1) Md. Abdul Jabbar

Mondol, (2) Md. Jachhijar Rahman @ Khoka , (3) Md. Abdul

Wahed Mondol , (4) Md. Montaz Ali Bepari @ Momtaj and (5)

Md. Ranju Miah by their culpable act and conduct forming part

of systematic attack consciously aided, abetted, substantially

contributed and participated in committing torture and killings

of seven non-combatant freedom-fighters on forcible capture

constituting the offences of ‘confinement’, ‘torture’ and

‘murder’ as ‘crimes against humanity’ enumerated in section

3(2)(a)(g)(h) of the Act of 1973 and thus all the four accused

persons incurred criminal liability under section 4(1) of the Act

of 1973.

XI. Conclusion 398. The case involves joint trial of five accused (1) Md. Abdul

Jabbar Mondol, (2) Md. Jachhijar Rahman @ Khoka , (3) Md.

Abdul Wahed Mondol , (4) Md. Montaz Ali Bepari @ Momtaj

and (5) Md. Ranju Miah. Of them excepting accused Ranju Mia

the rest four accused have been absconding. On cautious and

rational appraisal of evidence presented all the five accused


159

persons are found to have had participation to the offences with

which they have been indicted. It is to be noted that five accused

have been indicted in two charges i.e. charge nos. 01 and 05.

And four accused, excepting accused Ranju Mia have been

indicted in two charges i.e. charge nos. 02 and 03.

399. In the case in hand the evidence presented by the

prosecution to prove the arraignments brought demonstrates

patently that the group of perpetrators accompanied by the

accused persons were consciously engaged in committing the

offences proved.

400. The accused persons, sharing common intent substantially

contributed to the commission of crimes proved. Based on

evidence we have rendered finding that the accused persons in

agreement with designed plan abetted, encouraged, induced and

substantially facilitated the commission of crimes proved. The

accused persons are found to have had actively participated and

substantially contributed, by their act or conduct forming part of

attack, to the actual commission of the crimes as arraigned in all

the four charges.

401. On rational and integrated evaluation of evidence provided

by the prosecution, we have already concluded that the accused


160

(1) Md. Abdul Jabbar Mondol, (2) Md. Jachhijar Rahman @

Khoka , (3) Md. Abdul Wahed Mondol , (4) Md. Montaz Ali

Bepari @ Momtaj and (5) Md. Ranju Miah were consciously

‘concerned’ as ‘participants’ and had also abetted, facilitated and

substantially contributed to the commission of the offences with

which they have been indicted.

402. History says, in 1971, thousands of atrocious incidents

happened within the territory of Bangladesh as part of organized

or systematic and planned attack. In the case in hand, it has been

proved that target of organized or systematic and planned attack

as proved was the Hindu community, the pro-liberation civilians

and non-combatant freedom-fighters.

403. The four charges framed against the accused persons arose

from some particular events occurred in 1971 during the War of

Liberation in different vicinities under police station Gaibandha

Sadar of the then Sub-Division- Gaibandha and the accused

persons arraigned of those charges are found to have had explicit

participation to the accomplishment of the crimes in question, in

different manner, by their act and conduct and they did such

atrocities as notorious loyalists of the Pakistani occupation army

and also in exercise of their affiliation in locally formed Razakar

Bahini.


161

404. Criminal acts the accused persons are found to have had

carried out were aimed to further policy and plan of the Pakistani

occupation army and it was a fragmented portrayal of untold

mayhem conducted in the territory of Bangladesh in 1971.

According to section 4(1) of the Act of 1973 all the accused

incurred criminal liability for the commission of diabolical

crimes already proved.

405. Untold atrocious violence that resulted in killing of a

number of unarmed freedom-fighters [as listed in charge no.04],

as found proved indubitably shakes the humanity. The nation

shall remain ever indebted to their sacrifices.

406. The truth unveiled through trial before this Tribunal

obviously shall shake human conscience and also shall make

space of knowing in exchange of what extent of sacrifice the

Bengali nation achieved its long cherished independence and

independent motherland— Bangladesh.

XII. Verdict on Conviction

407. In view of the reasoned findings set out in our unanimous

Judgement, by adjudicating all the four charges and having

considered all evidence and arguments advanced, we

unanimously find the accused (1) Md. Ranju Miah, (2) Md.


162

Abdul Jabbar Mondol (absconded), (3) Md. Jachhijar Rahman

alias Khoka (absconded), (4) Md. Abdul Wahed Mondol

(absconded), and (5) Md. Montaz Ali Bepari alias

Momtaj[absconded] guilty and criminally liable beyond

reasonable doubt as below:

Five[05] accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar Mondol , (3) Md. Jachhijar Rahman @ Khoka , (4) Md. Abdul Wahed Mondol and (5) Md. Montaz Ali Bepari @ Momtaj

Charge No.01: GUILTY of the offence of

participating, aiding, abetting and substantially

contributing to the commission of the offences of

‘confinement’; ‘torture’; 'deportation', 'other

inhumane act' and ‘murder’ as crimes against

humanity as enumerated in section 3(2)(a)(g)(h) of

the Act of 1973 and thus they incurred criminal

liability under section 4(1) of the Act of 1973 and

they be convicted and sentenced under section 20(2)

of the said Act.

Four[04] accused (1) Md. Abdul Jabbar Mondol , (2) Md. Jachhijar Rahman @ Khoka , (3) Md. Abdul Wahed Mondol and (4) Md. Montaz Ali Bepari @ Momtaj




‘confinement’, ‘other inhumane act’ and

‘murder’ as crimes against humanity as enumerated


163

in section 3(2)(a)(g)(h) of the Act of 1973 and thus

they incurred criminal liability under section 4(1) of

the Act of 1973 and they be convicted and

sentenced under section 20(2) of the said Act.

Four[04] accused (1) Md. Abdul Jabbar Mondol , (2) Md. Jachhijar Rahman @ Khoka , (3) Md. Abdul Wahed Mondol and (4) Md. Montaz Ali Bepari @ Momtaj




‘confinement’ and ‘murder’ as crimes against

humanity as enumerated in section 3(2)(a)(g)(h) of

the Act of 1973 and thus they incurred criminal

liability under section 4(1) of the Act of 1973 and

they be convicted and sentenced under section 20(2)

of the said Act.

Five[05] accused (1) Md. Ranju Miah, (2) Md. Abdul Jabbar Mondol , (3) Md. Jachhijar Rahman @ Khoka , (4) Md. Abdul Wahed Mondol and (5) Md. Montaz Ali Bepari @ Momtaj




‘confinement’, ‘torture’ and ‘murder’ as ‘crimes

against humanity’ as crimes against humanity as

enumerated in section 3(2)(a)(g)(h) of the Act of

1973 and thus they incurred criminal liability under

section 4(1) of the Act of 1973 and they be

convicted and sentenced under section 20(2) of the

said Act.


164

XIII. Verdict on sentence 408. Mr. Mokhlesur Rahman Badal, the learned prosecutor

submitted that all the five accused should face the highest

sentence, being a sentence of death, as they are proved to have

abetted, contributed, substantially facilitated and participated to

the commission of horrendous criminal acts constituting the

offences of ‘murder’, confinement’, torture’ and ‘deportation’ as

crimes against humanity directing pro-liberation civilians, non-

combatant freedom-fighters and Hindu civilians.

409. The learned prosecutor further submits that the intent of the

group of attackers accompanied by the accused persons and their

cohorts was to annihilate the civilians who took stance in support

of the war of liberation. The facts and circumstances appeared

from the evidence tendered demonstrate it unerringly.

410. The proved criminal acts of the accused persons were

explicitly intended to materialize the common purpose of the

criminal gang and the accused persons were conscious and active

part thereof. Only the heaviest sentence would be just and

appropriate to punish those horrendous crimes causing untold

torment that justifiably corresponds to their overall magnitude,

the learned prosecutor added.


165

411. On contrary, Mr. Mohammad Abul Hassan the learned

state defence counsel did not prefer to agitate any submission in

relation to awarding sentence, by focusing any mitigating factor.

However, he submitted that since prosecution could not prove

involvement and complicity of accused persons with the offences

alleged they deserve acquittal.

412. History says that the Pakistani occupation armed forces and

their armed organs including the auxiliary forces indisputably

had indiscriminately committed forbidden acts of aggression

directing the civilian population of Bangladesh in 1971. The

events arraigned in this case are a split depiction of the diabolical

mayhem conducted in 1971.

413. In the case in hand, all the five accused persons have been

found guilty for the atrocious crimes committed directing

unarmed civilians in 1971, during the war of liberation.

According to settled jurisprudence the gravity of the offences

committed is the key deciding factor in the determination of the

sentence to be awarded.

414. Tribunal notes that provision relating to awarding sentence

as contained in section 20(2) of the Act demonstrates that when a

person is found guilty for the offences enumerated in section 3(2)


166

of the Act of 1973, awarding death sentence is the ‘rule’ and any

other sentence of imprisonment is an ‘exception’. That is to say,

in deciding appropriate sentence Tribunal requires to weigh the

aggravating factor[s] and magnitude of the crimes proved.

415. In assessing the aggravating factors, we must eye on the

nature and extent of the offences committed, their scale, the role

the accused had played in providing contribution and assistance

to the accomplishment of crimes proved, and the trauma and

harm sustained by the victims and their families.

416. The case in hand carries some distinctive pattern, nature and

extent. All the four events arraigned involve the offences of

murder and other offences as crimes against humanity conducted

in day time. Perpetration of the offences proved happened in

extreme diabolical manner.

417. It has been proved that the convicted accused persons were

conscious and culpable part of the criminal enterprise. Their acts

and conduct as have been found proved formed part of designed

attack which was intended to liquidate the unarmed civilians.

418. In the case in hand, already the convicted accused persons

are found to have incurred criminal liability for the offences with


167

which they have been indicted. They in accomplishing the crimes

arraigned had acted in extreme beastly manner and antagonism,

it stands proved.

419. The event of attack [as listed in charge no.01] directing the

local Hindu community at village-Bishnopur under police

station-Gaibandha Sadar killed Hindu civilians, caused mental

harm by forcing Hindu women to get converted to Muslim,

carried out devastating activities, detriment to normal livelihood

of civilians . The criminal acts collectively forced hundreds of

Hindu civilians of the localities to deport to India. All the

convicted five accused persons were knowingly engaged in

accomplishing the crimes, by unlawful acts and providing

substantial contribution. The convicted accused persons had

acted knowingly and being part of the murderous enterprise.

Mode of their participation in perpetrating the crimes was indeed

full of deliberate aggression.

420. The attack launched at village-Nandina under Police

station-Gaibandha Sadar of District-[now] Gaibandha [as listed

in charge no.02] resulted in brutal killing eight [08] pro-

liberation civilians. The convicted four accused consciously

participated in getting the victims captured. They participated

and contributed in effecting the killings, by their act of explicit


168

culpable contribution. Devastating activities were also carried

out by looting and burning down numerous houses, in

conjunction with the attack intending to terrorize the civilians.

421. In continuation of attack as arraigned in charge no.02 the

gang formed of Pakistani occupation army and convicted four

accused carried out systematic attack at village- Doulatpur , on

the same day i.e. on 18 October 1971, to further same purpose

[as listed in charge no.03] and deliberately annihilated five[05]

defenceless civilians perceiving them as associates of freedom-

fighters. This recurrent attack was conducted on the same day,

after the criminal gang concluded its mission at village- Nandina

[as listed in charge no.02].

422. Charge no.04 relates to the event of systematic attack

which resulted in killing seven [07] non-combatant freedom-

fighters. All the five convicted accused participated in

perpetrating the crimes at different sites and in different manner.

It stands proved. This event was chained to the prior attacks

arraigned in charge nos. 02 and 03. On the same day, after

carrying out attacks as arraigned in those two charges the gang

accompanied by the convicted accused persons started searching

freedom-fighters around the localities and eventually they got

seven unarmed freedom-fighters captured and annihilated them


169

in brutal manner, at different sites. Unarmed freedom-fighter

Abul Kashem was subjected to untold torture tying him up with a

banyan tree, after he was forcibly captured.

423. By maintaining close nexus with the Pakistani occupation

army stationed in Gaibandha and also in exercise of affiliation

i9n Razakar Bahini the convicted accused persons despite being

Bengali had acted as notorious traitors, being imbued by the

policy and plan of resisting the valiant voyage of Bengali nation

in achieving its independence. Monstrous role of the convicted

accused persons in committing the offences proved indisputably

deserves to be taken into account as an aggravating factor, in

awarding sentence.

424. Magnitude and horrendous gravity of offences committed

entails the particular circumstances of the case, the form and

degree of the participation of the convicted accused persons in

committing the crimes, and the number of victims. Keeping all

these into account the sentence to be awarded also should mirror

the totality of criminal acts of the convicted accused persons

forming part of systematic attacks.

425. Tribunal emphatically notes that the crimes for which the

accused persons have been found guilty and convicted were the


170

gravest pattern of crimes which were aimed not only against a

section of civilian population of particular geographic vicinity

but against the entire humankind. This view adds to the

magnitude of the crimes proved and also the culpability of the

accused persons.

426. Crimes against humanity cut deep. The ultimate victim of

such crimes is the nation itself. Intuitively, those crimes seem to

have gravely violated humanness itself. Thus, letters of law

should not remain non-responsive to the cry, unspeakable trauma

and harm sustained by the victims and their families, in awarding

sentence. The Appellate Division has observed in the Criminal

Review Petition No. 62 of 2015 that-

"While awarding the sentence,

the Court must take into

consideration the unbearable

pains, tears rolling down the

cheeks and sufferings of the

widows and children of the

victims who cried for getting

justice for about 43 years. "

427. Tribunal notes that an accused who is found guilty for the

offences which shake the entire humanity must be awarded just

and just punishment and it must commensurate to the magnitude


171

and gravity of the offences as crimes against humanity

committed in 1971 in violation of customary international law

during the War of Liberation of Bangladesh.

428. Convicted accused persons are found to have had

participation in the mission agreeing with its purpose and intent

and knowing the consequence of the criminal mission. Taking all

these factors into account we are of the view that the wheels of

justice must move not only to halt the culture of impunity but

also for healing the immense trauma and untold wound the

victims and sufferers sustained.

429. In view of reasoned consideration as made herein above and

bearing in mind the nature and proportion to the gravity of the

horrific offences proved and also keeping the settled factors as

focused above into account we are of the UNINAIMOUS view

that justice would be met if the convicted accused (1) Md. Ranju

Miah, (2) Md. Abdul Jabbar Mondol, (3) Md. Jachhijar Rahman

@ Khoka, (4) Md. Abdul Wahed Mondol and (5) Md. Montaz

Ali Bepari @ Momtaj who have been found guilty beyond

reasonable doubt for the crimes proved are condemned and

sentenced as below, under the provision of section 20(2) of the

Act of 1973:


172

Hence it is ORDERED

That the five [05] accused—

(1) Md. Abdul Jabbar Mondol , son of late Abdul Gofur

Mondol and late Fuljan Nesa Begum, village-Nandina,

Police Station-Gaibandha Sadar, District-Gaibandha,

(2) Md. Jachhijar Rahman @ Khoka , son of Abdul

Jabbar Mondol and Mst. Amena Begum, village-Nandina,

Police Station-Gaibandha Sadar, District-Gaibandha, at

present- House No.464/5, North Ibrahimpur (4th floor, Bou

Bazarer Dhal), Police Station-Kafrul, DMP, Dhaka,

(3) Md. Abdul Wahed Mondol ,son of Md. Abdul Jabbar


Station- Gaibandha Sadar, District Gaibandha,

(4)Md. Montaz Ali Bepari @ Momtaj, son of late

Shomesh Uddin Bepari and late Khatijan Bewa, village-

Nandina, Police Station- Gaibandha Sadar, District-

Gaibandha and

(5) Md. Ranju Miah , son of late Abbas Ali and late

Amena Begum, village- Chak Goyashpur, Police Station-

Gaibandha Sadar, District-Gaibandha--

Are found UNANIMOUSLY guilty of the offence of ‘crimes

against humanity’ enumerated in section 3(2)(a)(g)(h) of the

International Crimes (Tribunals) Act, 1973, arraigned in charge


173

nos. 01 and 04. Accordingly, they be convicted and condemned

UNANIMOUSLY to the sentence as below:

‘Sentence of death’ for the crimes as listed in

charge no.01 and they be hanged by the neck till

they are dead, under section 20(2) of the

International Crimes (Tribunals) Act, 1973

AND





In addition to above two charges, four [04] accused (1) Md.

Abdul Jabbar Mondol (2) Md. Jachhijar Rahman @ Khoka (3)

Md. Abdul Wahed Mondol and (4) Md. Montaz Ali Bepari @

Momtaj are also found UNANIMOUSLY guilty of the offence

of ‘crimes against humanity’ enumerated in section

3(2)(a)(g)(h) of the International Crimes (Tribunals) Act, 1973,

arraigned in charge nos. 02 and 03. Accordingly, they be

convicted and condemned UNANIMOUSLY to the sentence as

below:






174

AND





The ‘sentences of death’ as awarded above, in respect of all the

four charges i.e. charge nos. 01, 02 , 03 and 04 will get merged.

The convicted accused Md. Ranju Miah [present on dock as

brought from prison] be sent to the prison with conviction

warrant accordingly.

Since the four[04] convicted accused persons have been

absconding the ‘sentence of death’ as awarded above shall be

executed after causing their arrest or when they surrender before

the Tribunal, whichever is earlier.

The ‘sentence of death’ awarded as above under section 20(2)

of the International Crimes (Tribunals) Act , 1973 [The Act

No.XIX of 1973] shall be carried out and executed in accordance

with the order of the Government as required under section 20(3)

of the said Act.


175

The convicts are at liberty to prefer appeal before the Appellate

Division of the Supreme Court of Bangladesh against their

conviction and sentence within 30 [thirty] days of the date of

order of conviction and sentence as per provisions of section 21

of the International Crimes (Tribunals) Act, 1973.

Issue conviction warrant against the convicted accused (1) Md.

Abdul Jabbar Mondol[absconding] (2) Md. Jachhijar Rahman @

Khoka[absconding] (3) Md. Abdul Wahed Mondol[absconding

and (4) Md. Montaz Ali Bepari @ Momtaj[absconding]

The Inspector General of Police [IGP] is hereby directed to

initiate effective, prompt and appropriate measure for ensuring

the apprehension of the convict absconding accused (1) Md.

Abdul Jabbar Mondol[absconding] (2) Md. Jachhijar Rahman @

Khoka[absconding] (3) Md. Abdul Wahed Mondol[absconding

and (4) Md. Montaz Ali Bepari @ Momtaj[absconding].

Let certified copy of this judgment be provided to the

prosecution and the convict accused Md. Ranju Miah free of

cost, at once.


176

If the absconding convict accused persons are arrested or

surrender within 30[thirty] days of the date of order of conviction

and sentence they will be provided with certified copy of this

judgment free of cost.

Let a copy of this judgment together with the conviction warrant

of the convict accused Md. Ranju Mia be sent to the District

Magistrate, Dhaka for information and necessary action.

Justice Md. Shahinur Islam, Chairman

Justice Amir Hossain, Member

Justice Md. Abu Ahmed Jamadar, Member

international crimes tribunal-1 old high court building

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